SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
(Amendment No. 4)*
Under the Securities Exchange Act of 1934
ADMINISTRADORA DE FONDOS DE PENSIONES PROVIDA S.A.
(Provida Pension Fund Administrator)
(Name of Issuer)
SHARES
OF COMMON STOCK, WITHOUT PAR VALUE
(Title of Class of Securities)
020304634
(CUSIP Number)
AMERICAN DEPOSITARY SHARES (ADS) EACH REPRESENTING
FIFTEEN (15) SHARES OF COMMON STOCK, WITHOUT PAR VALUE
(Title of Class of Securities)
00709P108
(CUSIP Number)
Brian V. Breheny
Skadden, Arps, Slate, Meagher & Flom LLP
1440 New York Avenue, N.W.
Washington, D.C. 20005
Telephone: (202) 371-7000
May 12, 2015
(Date of
Event Which Requires Filing of this Statement)
If the filing
person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of sections 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following
box. ¨
Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Section 240.13d-7 for
other parties to whom copies are to be sent.
| * |
The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information
which would alter disclosures provided in a prior cover page. |
The information required on the remainder of this cover page
shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or otherwise subject to the liabilities of that section of the Exchange Act but shall be
subject to all other provisions of the Exchange Act (however, see the Notes).
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| 1. |
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NAMES OF
REPORTING PERSONS MetLife, Inc. |
| 2. |
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CHECK THE APPROPRIATE BOX IF A MEMBER
OF A GROUP (see instructions)
(a) ¨ (b) ¨ |
| 3. |
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SEC USE ONLY
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| 4. |
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SOURCE OF FUNDS (see instructions)
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| 5. |
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CHECK IF DISCLOSURE OF LEGAL
PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E) ¨ |
| 6. |
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CITIZENSHIP OR PLACE OF
ORGANIZATION Delaware |
| NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING PERSON
WITH |
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7. |
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SOLE VOTING POWER
0 |
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8. |
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SHARED VOTING POWER
308,928,816 |
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9. |
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SOLE DISPOSITIVE POWER
0 |
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10. |
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SHARED DISPOSITIVE POWER
308,928,816 |
| 11. |
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
308,928,816 |
| 12. |
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CHECK IF THE AGGREGATE AMOUNT IN ROW
(11) EXCLUDES CERTAIN SHARES (see instructions)
¨ |
| 13. |
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PERCENT OF CLASS REPRESENTED BY AMOUNT
IN ROW (11) 93.2%* |
| 14. |
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TYPE OF REPORTING PERSON (see
instructions) CO, HC |
| * |
Percentage calculation assumes, consistent with applicable Chilean law, that 3,295,861 treasury shares are issued and outstanding but not beneficially owned by the Reporting Persons. |
Page 2 of 14
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| 1. |
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NAMES OF
REPORTING PERSONS MetLife Chile Acquisition Co. S.A. |
| 2. |
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CHECK THE APPROPRIATE BOX IF A MEMBER
OF A GROUP (see instructions)
(a) ¨ (b) ¨ |
| 3. |
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SEC USE ONLY
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| 4. |
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SOURCE OF FUNDS (see instructions)
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| 5. |
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CHECK IF DISCLOSURE OF LEGAL
PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E) ¨ |
| 6. |
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CITIZENSHIP OR PLACE OF
ORGANIZATION Chile |
| NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING PERSON
WITH |
|
7. |
|
SOLE VOTING POWER
0 |
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8. |
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SHARED VOTING POWER
308,928,816 |
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9. |
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SOLE DISPOSITIVE POWER
0 |
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10. |
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SHARED DISPOSITIVE POWER
308,928,816 |
| 11. |
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
308,928,816 |
| 12. |
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CHECK IF THE AGGREGATE AMOUNT IN ROW
(11) EXCLUDES CERTAIN SHARES (see instructions)
¨ |
| 13. |
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PERCENT OF CLASS REPRESENTED BY AMOUNT
IN ROW (11) 93.2%* |
| 14. |
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TYPE OF REPORTING PERSON (see
instructions) CO |
| * |
Percentage calculation assumes, consistent with applicable Chilean law, that 3,295,861 treasury shares are issued and outstanding but not beneficially owned by the Reporting Persons. |
Page 3 of 14
This Amendment No. 4 is being filed by MetLife, Inc. (“MetLife”), and its indirect
wholly-owned subsidiary, MetLife Chile Acquisition Co. S.A. (“Acquisition Co.,” and collectively with MetLife, the “Reporting Persons”) with respect to the Common Shares, without par value (collectively, the “Common
Shares,” and each a “Common Share”) of Administradora de Fondos de Pensiones Provida S.A. (the “Company”), and it hereby amends the statement of beneficial ownership on Schedule 13D originally filed on October 11, 2013,
as amended on March 21, 2014, August 28, 2014 and November 17, 2014 (collectively with this Amendment No. 4, the “Schedule 13D”). Capitalized terms used herein and not defined herein have the meanings ascribed
thereto in the Schedule 13D.
Item 2. Identity and Background
Item 2 is hereby amended and restated as follows:
This Schedule 13D is being filed pursuant to Rule 13d-1 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”),
by MetLife, a Delaware corporation, and its indirect wholly-owned subsidiary, Acquisition Co., a Chilean closed corporation (sociedad anónima cerrada). MetLife’s executive offices are located at 200 Park Avenue, New York, New York
10166. Acquisition Co.’s executive offices are located at Agustinas 640, piso 18, Santiago, Región Metropolitana, Chile.
MetLife, through its subsidiaries and affiliates, is a global provider of life insurance, annuities, employee benefits and asset management.
Acquisition Co. was formed by MetLife for the purpose of acquiring up to 100% of the outstanding Common Shares and ADSs and does not engage in any other business activities, except that Acquisition Co. will be the surviving entity in the merger
reported on November 17, 2014 on Amendment No. 3 to the Schedule 13D, if the merger receives regulatory approval in Chile (the “Merger”).
The name, business address, present principal occupation or employment (including the name, principal business and address of any corporation
or other organization in which such employment is conducted) and place of citizenship of each executive officer and director of MetLife and Acquisition Co. are set forth on Schedules I and II attached hereto and are incorporated herein by reference.
To the best knowledge of MetLife and Acquisition Co., none of MetLife, Acquisition Co. or any of the persons listed in Schedules I and II
have been, during the past five (5) years, (i) convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or (ii) a party to a civil proceeding of a judicial or administrative body of competent
jurisdiction and as a result of such proceedings was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activity subject to, federal or state securities laws or finding any violations with
respect to such laws.
Item 4. Purpose of Transactions
Item 4 is hereby amended and supplemented by adding the following:
On May 12, 2015, MetLife Chile Inversiones Limitada (“Chile Inversiones”), an indirect wholly-owned subsidiary of MetLife, entered
into a Share Purchase Agreement (the “Depositary Purchase Agreement”) with The Bank of New York Mellon, as depositary under the Deposit Agreement (the “ADS Depositary”), pursuant to which, subject to the satisfaction or waiver of
certain conditions, Chile Inversiones would acquire any and all Common Shares held by the ADS Depositary plus (i) any other securities of the Company (or any successor entity thereof) received by the ADS Depositary or the Custodian (as defined
in the Deposit
Page 4 of 14
Agreement) in lieu of Common Shares, including in connection with the Merger, less (ii) any Common Shares that the ADS Depositary is required by applicable law or contract to deliver to the
Company (or any successor entity thereof) in order to receive the securities described in (i), less (iii) any Common Shares that the ADS Depositary is required to deliver to any third party in exchange for ADSs pursuant to the Deposit
Agreement, in each of the cases of (i) through (iii), during the period beginning on May 7, 2015 and ending on the third (3rd) business day prior to the Closing Date (collectively, the “Sale Shares”), in exchange for a price
per Common Share equal to the volume weighted average price at which the Common Shares have traded on the Santiago Stock Exchange (Bolsa de Valores) during the period beginning on May 7, 2015 and ending on the third business day prior to
the Closing Date (as defined in the Depositary Purchase Agreement) (the “Per Share Consideration”), which price per Common Share shall in no event be less than Ps. 3,092.05 or more than Ps. 3,300.00 (the “Depositary
Transaction”). Notwithstanding the foregoing, if any third party makes a bona fide unsolicited written proposal for all of the Sale Shares before the closing of the Depositary Transaction with a purchase price per Common Share higher than the
greater of (i) Ps. 3,330.00 or (ii) the Per Share Consideration as may be proposed to be amended by Chile Inversiones pursuant to the Depositary Purchase Agreement (a “Superior Proposal”), Chile Inversiones will have ten
(10) business days following delivery by the ADS Depositary of a notice of a Superior Proposal to deliver a notice to the ADS Depositary confirming that Chile Inversiones would like to purchase the Sale Shares on substantially the same terms
and conditions set forth in the notice of the Superior Proposal. If the Depositary Transaction is consummated, the Reporting Persons will increase their interest in the Company from approximately 93.2% of the Common Shares, as of May 12, 2015, to
approximately 94.7% of the Common Shares. The Depositary Transaction will not result in a change of control of the Company. In connection with the Depositary Transaction, MetLife and Chile Inversiones expect to file a Rule 13e-3 Transaction
Statement with the SEC after the date hereof.
The foregoing description of the Depositary Purchase Agreement is a summary and qualified
in its entirety by the terms of the Depositary Purchase Agreement, a copy of which is filed herewith as an exhibit to this Schedule 13D, and which is incorporated herein by reference.
The Depositary Transaction could result in the acquisition or disposition of additional securities of the Company. One or more of the
Reporting Persons are expected to take actions in furtherance of the Depositary Transaction.
All of the Reporting Persons’ interest
in the Company is expected to be held in the form of Common Shares in Chile. The Reporting Persons will continue to take steps to surrender all of the ADSs owned by the Reporting Persons to the ADS Depositary, in accordance with the Deposit
Agreement, in exchange for the Common Shares represented thereby.
The Reporting Persons may at any time, or from time to time,
(i) acquire additional Common Shares, including Common Shares held by the Company in treasury, in the open market, in privately negotiated transactions, or otherwise, (ii) otherwise seek control or seek to influence the management and
policies of the Company, (iii) amend the terms of the Depositary Transaction, or, subject to its terms, terminate the Depositary Purchase Agreement, (iv) take any action in or out of the ordinary course of business to facilitate or
increase the likelihood of consummation of the Depositary Transaction, or (v) change their intentions with respect to any such matters, in each of the cases of (i) through (v), based upon the Reporting Persons’ evaluation of the
Company’s businesses and prospects, price levels of the Common Shares, conditions in the securities and financing markets and in the Company’s industry and the economy in general, regulatory developments affecting the Company and its
industry and other factors deemed relevant.
Page 5 of 14
Except as set forth in this Schedule 13D (including any information incorporated by reference)
and in connection with the transactions described in this Schedule 13D, none of the Reporting Persons has any plan or proposal that relates to or would result in any of the transactions described in subparagraphs (a) through (j) of
Item 4 to the Schedule 13D.
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer
Item 6 is hereby amended and supplemented by adding the following:
The information set forth under Item 4 of this Schedule 13D is incorporated herein by reference.
Except as disclosed in this Schedule 13D, there are no contracts, arrangements, understandings or relationships between the Reporting Persons
and any third persons with respect to Common Shares or ADSs.
Item 7. Material to be Filed as Exhibits
Item 7 is hereby amended and restated as follows:
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| Exhibit No. |
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Title |
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| 1 |
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Transaction Agreement, dated as of February 1, 2013, by and among Banco Bilbao Vizcaya Argentaria S.A., BBVA Inversiones Chile S.A., MetLife, Inc. and MetLife Chile Acquisition Co. S.A. (incorporated herein by reference to Exhibit
(d)(1) to the Schedule TO-T filed by MetLife Chile Acquisition Co. S.A. with the U.S. Securities and Exchange Commission on August 6, 2013). |
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| 2 |
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Share Purchaser Joinder Agreement to the Transaction Agreement by and among Banco Bilbao Vizcaya Argentaria S.A., BBVA Inversiones Chile, MetLife and MetLife Chile Acquisition Co. S.A., dated as of March 12, 2013 (incorporated
herein by reference to Exhibit (d)(2) to the Schedule TO-T filed by MetLife Chile Acquisition Co. S.A. with the U.S. Securities and Exchange Commission on August 6, 2013). |
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| 3 |
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Joint Filing Agreement, dated October 11, 2013, by and between MetLife, Inc., MetLife Chile Acquisition Co. S.A. and Inversiones Previsionales S.A. |
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| 4 |
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Resolution of the Board of Directors of MetLife Chile Acquisition Co. S.A. evidencing authority to sign of the Authorized Representative, dated October 9, 2013. (English translation) |
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| 5 |
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Resolution of the Board of Directors of Inversiones Previsionales S.A. evidencing authority to sign of the Authorized Representative, dated October 9, 2013. (English translation) |
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| 6 |
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American Depositary Share Purchase Agreement, dated as of March 28, 2014, by and between Little Oak Asset Management, LLC and MetLife Chile Acquisition Co. S.A. |
Page 6 of 14
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| 7 |
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American Depositary Share Purchase Agreement, dated as of March 31, 2014, by and between CIBC World Markets Inc. and MetLife Chile Acquisition Co. S.A. |
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| 8 |
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American Depositary Share Purchase Agreement, dated as of May 16, 2014, by and between Rangeley Capital Partners, L.P. and MetLife Chile Acquisition Co. S.A. |
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| 9 |
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American Depositary Share Purchase Agreement, dated as of August 22, 2014, by and between Rangeley Capital Partners, L.P. and MetLife Chile Acquisition Co. S.A. |
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| 10 |
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Resolution of the Board of Directors of MetLife Chile Acquisition Co. S.A. evidencing authority to sign of the Authorized Representative, dated August 26, 2014. (English translation) |
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| 11 |
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Resolution of the Board of Directors of Inversiones Previsionales S.A. evidencing authority to sign of the Authorized Representative, dated August 26, 2014. (English translation) |
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| 12 |
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American Depositary Share Purchase Agreement, dated as of September 26, 2014, by and between CIBC World Markets Inc. and MetLife Chile Acquisition Co. S.A. |
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| 13 |
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American Depositary Share Purchase Agreement, dated as of September 26, 2014, by and between Rangeley Capital Partners, LLC and MetLife Chile Acquisition Co. S.A. |
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| 14 |
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American Depositary Share Purchase Agreement, dated as of September 26, 2014, by and between Andrew Lichtenstein, Inc. and MetLife Chile Acquisition Co. S.A. |
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| 15 |
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Merger Agreement of Administradora de Fondos de Pensiones ProVida S.A. into MetLife Chile Acquisition Co. S.A., dated as of November 14, 2014, by and among MetLife Chile Acquisition Co. S.A., Inversiones MetLife Holdco 2 Dos
Limitada, Inversiones MetLife Holdco 3 Tres Limitada and MetLife Chile Inversiones Limitada. (English translation) |
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| 16 |
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Share Purchase Agreement, dated as of May 12, 2015, by and between The Bank of New York Mellon and MetLife Chile Inversiones Limitada.*† |
| † |
Schedules have been omitted. MetLife hereby undertakes to furnish supplementally copies of any of the omitted schedules upon request by the U.S. Securities and Exchange Commission. |
Page 7 of 14
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth herein is true, complete and
correct. Pursuant to Rule 13d-1(k)(1), each of the undersigned agrees that this statement is filed on behalf of each of us.
Dated as of: May 12, 2015
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| MetLife, Inc. |
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| By: |
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/s/ William J. Wheeler |
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Name: William J. Wheeler |
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Title: President, Americas |
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| MetLife Chile Acquisition Co. S.A. |
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| By: |
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/s/ Randal W. Haase |
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Name: Randal W. Haase |
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Title: Authorized Representative |
Page 8 of 14
Exhibit Index
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| Exhibit No. |
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Title |
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| 1 |
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Transaction Agreement, dated as of February 1, 2013, by and among Banco Bilbao Vizcaya Argentaria S.A., BBVA Inversiones Chile S.A., MetLife, Inc. and MetLife Chile Acquisition Co. S.A. (incorporated herein by reference to Exhibit
(d)(1) to the Schedule TO-T filed by MetLife Chile Acquisition Co. S.A. with the U.S. Securities and Exchange Commission on August 6, 2013). |
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| 2 |
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Share Purchaser Joinder Agreement to the Transaction Agreement by and among Banco Bilbao Vizcaya Argentaria S.A., BBVA Inversiones Chile, MetLife and MetLife Chile Acquisition Co. S.A., dated as of March 12, 2013 (incorporated
herein by reference to Exhibit (d)(2) to the Schedule TO-T filed by MetLife Chile Acquisition Co. S.A. with the U.S. Securities and Exchange Commission on August 6, 2013). |
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| 3 |
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Joint Filing Agreement, dated October 11, 2013, by and between MetLife, Inc., MetLife Chile Acquisition Co. S.A. and Inversiones Previsionales S.A. |
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| 4 |
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Resolution of the Board of Directors of MetLife Chile Acquisition Co. S.A. evidencing authority to sign of the Authorized Representative, dated October 9, 2013. (English translation) |
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| 5 |
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Resolution of the Board of Directors of Inversiones Previsionales S.A. evidencing authority to sign of the Authorized Representative, dated October 9, 2013. (English translation) |
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| 6 |
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American Depositary Share Purchase Agreement, dated as of March 28, 2014, by and between Little Oak Asset Management, LLC and MetLife Chile Acquisition Co. S.A. |
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| 7 |
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American Depositary Share Purchase Agreement, dated as of March 31, 2014, by and between CIBC World Markets Inc. and MetLife Chile Acquisition Co. S.A. |
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| 8 |
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American Depositary Share Purchase Agreement, dated as of May 16, 2014, by and between Rangeley Capital Partners, L.P. and MetLife Chile Acquisition Co. S.A. |
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| 9 |
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American Depositary Share Purchase Agreement, dated as of August 22, 2014, by and between Rangeley Capital Partners, L.P. and MetLife Chile Acquisition Co. S.A. |
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| 10 |
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Resolution of the Board of Directors of MetLife Chile Acquisition Co. S.A. evidencing authority to sign of the Authorized Representative, dated August 26, 2014. (English translation) |
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| 11 |
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Resolution of the Board of Directors of Inversiones Previsionales S.A. evidencing authority to sign of the Authorized Representative, dated August 26, 2014. (English
translation) |
Page 9 of 14
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| 12 |
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American Depositary Share Purchase Agreement, dated as of September 26, 2014, by and between CIBC World Markets Inc. and MetLife Chile Acquisition Co. S.A. |
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| 13 |
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American Depositary Share Purchase Agreement, dated as of September 26, 2014, by and between Rangeley Capital Partners, LLC and MetLife Chile Acquisition Co. S.A. |
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| 14 |
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American Depositary Share Purchase Agreement, dated as of September 26, 2014, by and between Andrew Lichtenstein, Inc. and MetLife Chile Acquisition Co. S.A. |
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| 15 |
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Merger Agreement of Administradora de Fondos de Pensiones ProVida S.A. into MetLife Chile Acquisition Co. S.A., dated as of November 14, 2014, by and among MetLife Chile Acquisition Co. S.A., Inversiones MetLife Holdco 2 Dos
Limitada, Inversiones MetLife Holdco 3 Tres Limitada and MetLife Chile Inversiones Limitada. (English translation) |
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| 16 |
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Share Purchase Agreement, dated as of May 12, 2015, by and between The Bank of New York Mellon and MetLife Chile Inversiones Limitada.*† |
| † |
Schedules have been omitted. MetLife hereby undertakes to furnish supplementally copies of any of the omitted schedules upon request by the U.S. Securities and Exchange Commission. |
Page 10 of 14
SCHEDULE I
DIRECTORS AND EXECUTIVE OFFICERS OF METLIFE
The following table sets forth the name, business address, present principal occupation or employment and the name, principal business and
address of any corporation or other organization in which such employment is conducted of each director and executive officer of MetLife. Each such person is a citizen of the United States of America, with the exception of John C.R. Hele, Franciscus
Hijkoop, Michel Khalaf and Christopher G. Townsend, who are citizens, respectively, of Canada, the Netherlands, the Republic of Lebanon and the United Kingdom of Great Britain and Northern Ireland.
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| Name of Director or
Executive |
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Business Address |
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Present Principal Occupation
or Employment |
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Name, Principal Business and Address
of
Employment |
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| Steven A. Kandarian |
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MetLife, Inc. 200 Park Avenue
New York, N.Y. 10166 |
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Chairman of the Board, Chief Executive Officer and President |
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MetLife, Inc. 200 Park Avenue
New York, N.Y. 10166 |
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| Ricardo A. Anzaldua |
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MetLife, Inc. 200 Park Avenue
New York, N.Y. 10166 |
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Executive Vice President and General Counsel |
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MetLife, Inc. 200 Park Avenue
New York, N.Y. 10166 |
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| Steven J. Goulart |
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MetLife, Inc. 200 Park Avenue
New York, N.Y. 10166 |
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Executive Vice President and Chief Investment Officer |
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MetLife, Inc. 200 Park Avenue
New York, N.Y. 10166 |
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| John C.R. Hele |
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MetLife, Inc. 200 Park Avenue
New York, N.Y. 10166 |
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Executive Vice President and Chief Financial Officer |
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MetLife, Inc. 200 Park Avenue
New York, N.Y. 10166 |
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| Franciscus Hijkoop |
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MetLife, Inc. 200 Park Avenue
New York, N.Y. 10166 |
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Executive Vice President and Chief Human Resources Officer |
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MetLife, Inc. 200 Park Avenue
New York, N.Y. 10166 |
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| Michel Khalaf |
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MetLife, Inc. 200 Park Avenue
New York, N.Y. 10166 |
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President, EMEA |
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MetLife, Inc. 200 Park Avenue
New York, N.Y. 10166 |
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| Esther S. Lee |
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MetLife, Inc. 200 Park Avenue
New York, N.Y. 10166 |
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Executive Vice President and Global Chief Marketing Officer |
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MetLife, Inc. 200 Park Avenue
New York, N.Y. 10166 |
Page 11 of 14
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| Martin J. Lippert |
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MetLife, Inc. 200 Park Avenue
New York, N.Y. 10166 |
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Executive Vice President and Head of Global Technology and Operations |
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MetLife, Inc. 200 Park Avenue
New York, N.Y. 10166 |
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| Maria R. Morris |
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MetLife, Inc. 200 Park Avenue
New York, N.Y. 10166 |
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Executive Vice President, Global Employee Benefits |
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MetLife, Inc. 200 Park Avenue
New York, N.Y. 10166 |
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| Christopher G. Townsend |
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MetLife, Inc. 200 Park Avenue
New York, N.Y. 10166 |
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President, Asia |
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MetLife, Inc. 200 Park Avenue
New York, N.Y. 10166 |
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| William J. Wheeler |
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MetLife, Inc. 200 Park Avenue
New York, N.Y. 10166 |
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President, Americas |
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MetLife, Inc. 200 Park Avenue
New York, N.Y. 10166 |
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| Cheryl W. Grisé |
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MetLife, Inc. 200 Park Avenue
New York, N.Y. 10166 |
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Former Executive Vice President, Northeast Utilities |
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N/A |
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| Carlos M. Gutierrez |
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MetLife, Inc. 200 Park Avenue
New York, N.Y. 10166 |
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Co-Chair, Albright Stonebridge Group |
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Albright Stonebridge Group 601 13th Street, NW, Suite 500
Washington, DC 20005 |
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| R. Glenn Hubbard |
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MetLife, Inc. 200 Park Avenue
New York, N.Y. 10166 |
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Dean and Russell L. Carson Professor of Economics and Finance, Graduate School of Business, Columbia University |
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Graduate School of Business Columbia
University 3022 Broadway Uris Hall, Room 101
New York, N.Y. 10027 |
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| Alfred F. Kelly, Jr. |
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MetLife, Inc. 200 Park Avenue
New York, N.Y. 10166 |
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Former Chairman of the Board, President and Chief Executive Officer, NY/NJ Super Bowl Host Company |
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N/A |
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| Edward J. Kelly, III |
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MetLife, Inc. 200 Park Avenue
New York, N.Y. 10166 |
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Former Chairman, Institutional Clients Group, Citigroup, Inc. |
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N/A |
Page 12 of 14
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| William E. Kennard |
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MetLife, Inc. 200 Park Avenue
New York, N.Y. 10166 |
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Former Senior Advisor, Grain Management, LLC |
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Velocitas Partners LLC 160 Greentree Drive
Suite 101 Dover, DE 19904 |
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| James M. Kilts |
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MetLife, Inc. 200 Park Avenue
New York, N.Y. 10166 |
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Partner, Centerview Capital |
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Centerview Capital 3 Greenwich Office Park,
2nd Floor Greenwich, CT 06831 |
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| Catherine R. Kinney |
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MetLife, Inc. 200 Park Avenue
New York, N.Y. 10166 |
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Former President and Co-Chief Operating Officer, New York Stock Exchange, Inc. |
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N/A |
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|
|
| Denise M. Morrison |
|
MetLife, Inc. 200 Park Avenue
New York, N.Y. 10166 |
|
President and Chief Executive Officer, Campbell Soup Company |
|
Campbell Soup Company 1 Campbell Place
Camden, NJ 08103-1701 |
|
|
|
|
| Kenton J. Sicchitano |
|
MetLife, Inc. 200 Park Avenue
New York, N.Y. 10166 |
|
Former Global Managing Director, PricewaterhouseCoopers LLP |
|
N/A |
|
|
|
|
| Lulu C. Wang |
|
MetLife, Inc. 200 Park Avenue
New York, N.Y. 10166 |
|
Chief Executive Officer, Tupelo Capital Management LLC |
|
Tupelo Capital Management LLC
340 Madison Avenue, 19th Floor
New York, N.Y. 10173 |
Page 13 of 14
SCHEDULE II
DIRECTORS AND OFFICERS OF ACQUISITION CO.
The following table sets forth the name, business address, present principal occupation or employment and the name, principal business and
address of any corporation or other organization in which such employment is conducted of each director and executive officer of Acquisition Co. Each such person is a citizen of Chile, with the exception of Randal W. Haase, who is a citizen of the
United States.
|
|
|
|
|
|
|
| Name of Director or
Executive |
|
Business Address |
|
Present Principal Occupation or
Employment |
|
Name, Principal Business and Address
of
Employment |
|
|
|
|
| Randal W. Haase |
|
1095 Avenue of the Americas
New York, New York 10036 |
|
Vice President—New Business Development |
|
MetLife, Inc. 1095 Avenue of the
Americas New York, New York
10036 |
|
|
|
|
| Ronald Michael
Mayne–Nicholls Secul |
|
Agustinas 640, piso 22, Santiago,
Región Metropolitana, Chile |
|
MetLife Chile Holding Head |
|
MetLife Chile Seguros de Vida S.A.
Agustinas 640, piso 22, Santiago, Región
Metropolitana, Chile |
|
|
|
|
| Pablo Iacobelli del Rio |
|
Isidora Goyenechea 2800, piso 43
Las Condes, Santiago, Chile |
|
Partner |
|
Carey y Cía. Ltda. Isidora Goyenechea
2800, piso 43 Las Condes, Santiago, Chile |
Page 14 of 14
Exhibit 16
EXECUTION COPY
SHARE PURCHASE AGREEMENT
SHARE PURCHASE AGREEMENT, dated as of May 12, 2015 (“Agreement”), by and between THE BANK OF NEW YORK MELLON, as
depositary (the “Depositary”), on the one hand, and METLIFE CHILE INVERSIONES LIMITADA (“Buyer”), on the other hand.
WHEREAS, Administradora de Fondos de Pensiones Provida S.A. (the “Company”), the Depositary and holders (“ADR
Holders”) of American Depositary Receipts (“ADR”) of the Company entered into a deposit agreement, dated as of November 22, 1994, as amended and restated as of February 7, 1996, as further amended and restated as
of August 19, 1999 (the “Deposit Agreement”);
WHEREAS, Banco Itaú was appointed as the Custodian (as defined
in the Deposit Agreement) (the “Custodian”) under the Deposit Agreement by the Depositary;
WHEREAS, the Deposit
Agreement terminated on September 18, 2014 (the “Deposit Agreement Termination Date”);
WHEREAS, Section 6.02
of the Deposit Agreement allows the Depositary at any time after the expiration of six (6) months from the Deposit Agreement Termination Date to sell at public or private sale, at such place or places and upon such terms as it may deem proper,
the Deposited Securities (as defined in the Deposit Agreement) then held thereunder; and
WHEREAS, this Agreement sets forth the terms and
conditions upon which the Depositary will sell to Buyer, and Buyer will purchase from the Depositary, the Sale Shares (as defined below).
NOW, THEREFORE, in consideration of and reliance upon the foregoing and the mutual agreements contained herein, the parties hereto agree as
follows:
1. Purchase and Sale of Shares. Subject to the terms and conditions of this Agreement, and in reliance on the
representations, warranties and covenants contained herein, the Depositary hereby agrees to, and shall cause the Custodian to, sell, assign and transfer to Buyer, and Buyer hereby agrees to purchase and accept from the Depositary, at the Closing (as
defined below), the Sale Shares for a purchase price per Share (as defined in the Deposit Agreement) equal to the volume weighted average price at which the Shares have traded on the Santiago Stock Exchange (Bolsa de Valores) during the
period beginning on May 7, 2015 and ending on the third (3rd) business day prior to the Closing Date (as defined below) as reported by Bloomberg L.P., except that the purchase price per Share shall in no event be less than Three Thousand
Ninety Two Five Cent Chilean Pesos (Ch$3,092.05) or, subject to Section 8(d), more than Three Thousand Three Hundred Chilean Pesos (Ch$3,300.00) (the “Purchase Price”), without interest or adjustment, free and clear of all
liens, equities, claims, options, proxies, voting agreements, charges and encumbrances of whatever nature (collectively, “Liens”) created by, or resulting from any action (or lack thereof) undertaken by, the Depositary, the
Custodian or their agents, except for any Liens pursuant to the Deposit Agreement (“Permitted Liens”) payable at the Closing (against delivery of the Sale Shares pursuant to Section 3(e) of this Agreement) by wire transfer in
immediately available funds to an account previously specified in writing by the Depositary.
2. Definitions. For purposes of this Agreement:
(a) an “affiliate” of a person shall mean any entity that directly or indirectly, through one or more intermediaries,
controls, or is controlled by or is under common control with such person;
(b) “business day” means any day other than a
Saturday, a Sunday or a day on which banks in Santiago (Chile) or New York City (New York, United States) are authorized or obligated by law or executive order to close;
(c) “Alternative Proposal” means any unsolicited written proposal or offer made by any person (other than Buyer or any of its
affiliates) for the acquisition or purchase, directly or indirectly, of any or all of the Sale Shares;
(d) “Company Material
Adverse Effect” means with respect to the Company any event, circumstance, development, occurrence, fact, condition, effect or change that, individually or in the aggregate with any other change, event, circumstance, development,
occurrence, fact, condition and/or effect has had or would reasonably be expected to have a materially adverse effect on the business, operations, results of operations, cash flows, assets, liabilities, condition (financial or otherwise) or
prospects thereof; provided, however, that “Company Material Adverse Effect” shall not include any adverse effect (i) that results from the announcement, implementation or closing of the transactions contemplated hereby;
(ii) that is due to any change in applicable laws or generally accepted accounting principles or interpretations, or (iii) that is due to any event, circumstance, development, occurrence, fact, condition, effect or change, which:
(x) affects domestic or foreign economies or securities or financial markets in general; (y) affects the industries in which the Company operates; or (z) is caused by acts of terrorism or war (whether or not declared) or any natural
or man-made disaster or acts of God; provided, further, that with respect to the foregoing clauses (ii) and (iii), such event, occurrence, fact, condition, effect or change does not disproportionately impact the Company or its business in
comparison to other participants in the industry or comparable companies;
(e) “Ch$” means Chilean Pesos;
(f) “Sale Shares” means:
| |
(i) |
Four Million Nine Hundred Seventy Nine Thousand Three Hundred Fifty Five (4,979,355) Shares; plus |
| |
(ii) |
any other securities of the Company (or any successor entity thereof) received by the Depositary or the Custodian in lieu of Shares; less |
| |
(iii) |
any Shares that the Depositary is required by applicable law or contract to deliver to the Company (or any successor entity thereof) in order to receive the substitute securities described in Section 2(f)(ii);
less |
2
| |
(iv) |
any Deposited Securities that the Depositary is required to deliver to ADR Holders upon surrenders of Receipts (as defined in the Deposit Agreement) pursuant to Section 2.05 and Section 6.02 of the Deposit
Agreement during the period beginning on the date hereof and ending on the third (3rd) business day prior to the Closing Date, |
and all rights attaching thereto, including voting rights and the right to all dividends or other distributions having a record date after the
Closing Date; and
(g) “Superior Proposal” means a bona fide unsolicited written Alternative Proposal from a third party
that is not subject to any conditions and if consummated would result in such person or its shareholders owning, directly or indirectly, all of the Sale Shares for a purchase price per Share higher than the greater of (i) Three Thousand Three
Hundred Chilean Pesos (Ch$3,300.00) or (ii) the Purchase Price as may be proposed to be amended by Buyer pursuant to Section 8(d).
3. Closing; Closing Conditions; Deliveries; Payment.
(a) Notwithstanding anything in this Agreement to the contrary, the closing of the purchase and sale of Sale Shares (the
“Closing”) shall take place at (i) 10:00 a.m. New York City time, on the third (3rd) business day after the satisfaction or (to the extent permitted by applicable law) waiver of all of the conditions to the Closing (other
than those conditions that by their nature are to be satisfied at the Closing, but subject to the fulfillment or waiver of those conditions), or (ii) such other time as shall be mutually agreed to by the Depositary and Buyer (such date, the
“Closing Date”).
(b) The obligations of each of the Depositary and Buyer to effect the Closing are subject to the
absence of any:
| |
(i) |
injunction, restraining order or decree of any nature issued by any court, governmental authority or regulatory agency of competent jurisdiction restraining or prohibiting the Closing, making the transactions
contemplated by this Agreement illegal or causing any of the transactions contemplated hereunder to be rescinded following completion thereof; and |
| |
(ii) |
pending third-party litigation, arbitration or administrative action which is reasonably expected to have a material adverse effect on the legality, validity or enforceability of this Agreement. |
(c) The obligations of the Depositary to effect the Closing are further subject to:
| |
(i) |
the representations and warranties of Buyer set forth in Section 5 being true and correct in all material respects as of the date hereof and as of the Closing Date (except to the extent given as to a specific date,
in which case, as of such specific date); |
| |
(ii) |
the performance in all material respects by Buyer of all of the covenants set forth herein to be performed by it on or prior to the Closing Date; and |
3
| |
(iii) |
the Depositary having received a certificate, dated as of the Closing Date, signed on behalf of Buyer by an appropriate officer thereof, certifying the satisfaction of the conditions set out in Section 3(c)(i) and
Section 3(c)(ii). |
(d) The obligations of Buyer to effect the Closing are further subject to:
| |
(i) |
the representations and warranties of the Depositary set forth in Section 4 being true and correct in all material respects as of the date hereof and as of the Closing Date (except to the extent given as to a
specific date, in which case, as of such specific date); |
| |
(ii) |
the performance in all material respects by the Depositary of all of the covenants set forth herein to be performed by it on or prior to the Closing Date; |
| |
(iii) |
Buyer having received a certificate, dated as of the Closing Date, signed on behalf of the Depositary by an appropriate officer thereof, certifying the satisfaction of the conditions set out in Section 3(d)(i) and
Section 3(d)(ii); |
| |
(iv) |
no Company Material Adverse Effect shall have occurred since the date hereof; |
| |
(v) |
(A) at least thirty (30) days shall have elapsed since a Rule 13e-3 Transaction Statement on Schedule 13E-3 (the “Transaction Statement”) has been filed with the United States Securities and
Exchange Commission (the “SEC”) in accordance with the applicable regulations of the SEC and the rules promulgated thereunder and (B) the SEC or its staff shall have confirmed to the Company that the SEC and its staff have no
outstanding comments with respect to the Transaction Statement; and |
| |
(vi) |
all dividends declared and approved by the Company prior to the date hereof shall have been paid. |
(e) At the Closing, (i) the Depositary shall transfer, convey and deliver, and shall cause the Custodian to transfer, convey and deliver,
to Buyer, free and clear of all Liens created by, or resulting from any action (or lack thereof) undertaken by, the Depositary, the Custodian or their agents, the Sale Shares, and deliver to Buyer (A) an original copy of the duly executed
certificate referred to in Section 3(d)(iii); (B) evidence satisfactory to Buyer of the registration of such transfer, conveyance and delivery in the books of the Custodian, the Company’s transfer agent and the Company; and
(C) such other documents and instruments as the Depositary and Buyer mutually agree to be reasonably necessary to consummate the transactions contemplated hereby; and (ii) Buyer shall deliver to the Depositary (A) the Purchase Price
for the Sale Shares, delivered pursuant to Section 1 hereof and in accordance therewith; (B) an original copy of the duly executed certificate referred to in Section 3(c)(iii); and (C) such other documents and instruments as the
Depositary and Buyer mutually agree to be reasonably necessary to consummate the transactions contemplated hereby.
4
4. Representations and Warranties of the Depositary. The Depositary represents and
warrants to Buyer as follows:
(a) the Depositary has the necessary legal capacity, power and authority to execute, deliver and carry out
the terms and provisions of this Agreement and to consummate the transactions contemplated hereby, and has taken all necessary action to authorize the execution, delivery and performance of this Agreement;
(b) this Agreement has been duly and validly authorized, executed and delivered by the Depositary and, assuming due authorization, execution
and delivery by and on behalf of Buyer, constitutes a legal, valid and binding obligation of the Depositary, enforceable in accordance with its terms;
(c) as of the date hereof and as of the Closing Date, the Depositary is the record owner of the Sale Shares, free and clear of any Liens
created by, or resulting from any action (or lack thereof) undertaken by, the Depositary, the Custodian or their agents (other than any Permitted Liens), and will transfer at Closing to Buyer good and valid title to the Sale Shares, free and clear
of any Liens created by, or resulting from any action (or lack thereof) undertaken by, the Depositary, the Custodian or their agents;
(d)
as of the date hereof and as of the Closing Date, other than the Sale Shares, the Depositary is not the owner, beneficially or of record, of any Shares or other Deposited Securities;
(e) the execution and delivery of this Agreement do not, and the consummation of the transactions contemplated hereby will not,
(i) violate or conflict with any provision of the trust, charter or organizational documents or by-laws or comparable documents of the Depositary, (ii) result in the imposition of any Liens (other than Permitted Liens) under, cause or
permit the acceleration of any obligation under, or violate or conflict with the terms, conditions or provisions of, any note, indenture, security agreement, lease, guaranty, joint venture agreement, or other contract, agreement or instrument to
which the Depositary is a party or by which the Depositary or any of the Sale Shares is bound, including, without limitation, the agreement between the Depositary and the Custodian appointing the Custodian as the Custodian under the Deposit
Agreement, or (iii) result in a breach or violation by such the Depositary of any law, rule or regulation or any order, injunction, judgment or decree of any court, governmental authority or regulatory agency;
(f) except for fees and commissions that will be paid in full by the Depositary or the Custodian from the proceeds of the sale of the Sale
Shares, without charge to Buyer, there are no claims for brokerage commissions or finder’s fees or agent’s commissions or other like payment in connection with this Agreement or the transactions contemplated hereby; and
(g) the Depositary has timely paid all Taxes required to be paid by it with respect to Tax periods (or portions thereof) occurring prior to
the Closing with respect to the acquisition, ownership or disposition of the Sale Shares by the Depositary, the Custodian or their agents. The term “Tax” or “Taxes” means all net income, gross income, gross
receipts, sales, use, ad valorem, transfer, excess profits, franchise, profits, withholding, excise, stamp, premium, property, capital stock, capital gains or windfall profits taxes, customs duties or other taxes, fees, assessments or governmental
charges of any kind whatsoever, together with any interest and penalties, additions to tax or additional amounts imposed with respect thereto.
5
5. Representations and Warranties of Buyer. Buyer represents and warrants to the
Depositary as follows:
(a) Buyer has the power and authority to execute, deliver and carry out the terms and provisions of this Agreement
and consummate the transactions contemplated hereby, and has taken all necessary action to authorize the execution, delivery and performance of this Agreement;
(b) this Agreement has been duly and validly authorized, executed and delivered by Buyer and, assuming due authorization, execution and
delivery by and on behalf of the Depositary, constitutes a legal, valid and binding agreement of Buyer, enforceable in accordance with its terms; and
(c) except for fees or commissions payable to any Chilean custodian of Buyer that will be paid in full by Buyer, without charge to the
Depositary, there are no claims for brokerage commissions or finder’s fees or agent’s commissions or other like payment in connection with this Agreement or the transactions contemplated hereby.
6. Taxes. The Depositary shall make full and timely payment of any Taxes owed by the Depositary, and shall cause the Custodian to make
full and timely payment of any Taxes owed by the Custodian, in connection with the execution, delivery and performance of this Agreement and the sale of the Sale Shares contemplated herein. Anything in the preceding sentence to the contrary
notwithstanding, the Depositary shall be responsible for, and shall pay, any Taxes imposed with respect to the transfer of the Sale Shares, except for any Taxes that are payable by Buyer under Chilean law. After the Closing, the Depositary shall
hold the net proceeds of the sale of the Sale Shares, together with any other cash then held by the Depositary, in accordance with the terms of Section 6.02 of the Deposit Agreement and the Depositary’s notice to ADR holders dated
March 6, 2015, for the pro rata benefit of the holders of ADRs which have not been surrendered prior to the third (3rd) business day prior to the Closing Date, such holders thereupon becoming general creditors of the Depositary with
respect to such net proceeds.
7. No Sale or Lien. Except as contemplated hereby or with the prior written consent of Buyer, from
and after the date hereof until the Closing Date, the Depositary shall not sell, assign, transfer, pledge, hypothecate or otherwise encumber in any manner whatsoever, or create any Lien (other than Permitted Liens) on any of the Sale Shares or agree
to do any of the foregoing. Any such sale, assignment, transfer, pledge, hypothetication or other encumbrance of any of the Sale Shares that is not in compliance with this Section 7 shall be null and void.
8. No Solicitation.
(a)
From and after the date hereof until the Closing Date, the Depositary shall not, and shall cause its officers, directors, employees, consultants, investment bankers, attorneys, accountants, the Custodian or other agents (collectively,
“Representatives”) not to, directly or
6
indirectly, (i) solicit, initiate or knowingly encourage or facilitate, or knowingly take any other action designed to facilitate any inquiry with respect to, or the making, submission or
announcement of, any Alternative Proposal or (ii) enter into, continue or otherwise participate in any discussions or negotiations regarding an Alternative Proposal with, or otherwise cooperate in any way with, any person (other than Buyer or
any of its affiliates or Representatives) relating to an Alternative Proposal. The Depositary agrees that it shall immediately cease and cause to be terminated all existing discussions, negotiations and communications, if any, with any persons with
respect to any Alternative Proposal.
(b) Notwithstanding the limitations set forth in Section 8(a), if at any time following the
date hereof and prior to the Closing Date, the Depositary receives, on an unsolicited basis, a bona fide written Alternative Proposal from a third party (that did not arise or result from any breach of this Section 8) that constitutes, or is
reasonably expected to constitute, a Superior Proposal, then the Depositary may engage in discussions or negotiations with the third party (including such third party’s Representatives) with respect to the Alternative Proposal.
(c) The Depositary shall promptly (and in any event within twenty four (24) hours) orally and in writing notify Buyer if any inquiries,
proposals or offers are received by, any information is requested from, or any negotiations or discussions are sought to be initiated or continued with, the Depositary or any of its Representatives, in each case, in connection with, or which could
reasonably be expected to result in, an Alternative Proposal, which notice shall identify the name of the person making such inquiry, proposal or request or seeking such negotiations or discussions and the material terms and conditions of such
inquiry, proposal or request and include copies of all written materials provided to the Depositary or any of its Representatives that describe any terms and conditions of any inquiry, proposal or request (and any subsequent changes to such terms
and conditions). The Depositary shall keep Buyer reasonably informed on a reasonably current basis (and in any event within twenty four (24) hours) of any material developments, discussions or negotiations regarding any Alternative Proposals or
any material change to the financial or other terms of any such Alternative Proposal.
(d) The Depositary shall not adopt, or publicly
propose to adopt, or execute or enter into, any binding or non-binding letter of intent, agreement in principle, memorandum of understanding, acquisition agreement, option agreement or other agreement, commitment, arrangement or understanding
contemplating or otherwise in connection with, or that is intended to or would reasonably be expected to lead to, any Alternative Proposal. Notwithstanding anything to the contrary set forth in this Section 8, upon receipt (and in any event no
later than twenty (24) hours therefrom) by the Depositary of a Superior Proposal after the date hereof, the Depositary shall deliver to Buyer a written notice (a “Superior Proposal Notice”) informing Buyer of the receipt of
such Superior Proposal, which notice shall include a description of the terms and conditions of the Superior Proposal, the identity of the person making the proposal, a copy of the proposed definitive agreement for such Superior Proposal and any
proposed related agreements in the form to be entered into. Buyer shall have ten (10) business days to deliver a written notice to the Depositary (the “Match Right Notice”) confirming that Buyer would like to purchase the
Shares on substantially the same terms and conditions set forth in the Superior Proposal Notice (it being understood and agreed that, in the event of an amendment to the terms of such Superior Proposal, the Depositary shall not be entitled to enter
into an agreement based on such Superior Proposal, as so amended, until ten (10) full business days following written
7
notice to Buyer of a Superior Proposal Notice with respect to such Superior Proposal as so amended). If Buyer shall have delivered a Match Right Notice, the transaction shall be consummated on
the terms thereof within five (5) business days, subject to the satisfaction or waiver of the conditions specified in Section 3. If (i) Buyer shall fail to deliver a Match Right Notice within the ten (10) business days set forth
above or (ii) Buyer shall have delivered a notice confirming it does not chose to exercise the match right, then the Depositary shall be entitled to terminate this Agreement. In determining whether to terminate this Agreement in accordance
herewith, the Depositary shall take into account any proposals made by Buyer to amend the terms of this Agreement and shall not terminate this Agreement unless, prior to the effectiveness of such termination, the Depositary, after considering the
results of any such negotiations and any revised proposals made by Buyer, concludes that the Superior Proposal giving rise to the Superior Proposal Notice continues to constitute a Superior Proposal.
9. Transaction Statement and Beneficial Ownership Filings. As promptly as practicable after the date hereof, Buyer shall prepare and
file with the SEC the Transaction Statement. The Depositary shall, and shall cause the Custodian to, cooperate with Buyer in the preparation and dissemination of the Transaction Statement and any similar documents required under Chilean law and any
amendments thereto and shall furnish to Buyer any information relating to it required by the Securities Exchange Act of 1934, as amended, or any applicable Chilean law. Buyer shall use its commercially reasonable efforts to respond as promptly as
practicable to any comments of the SEC with respect to the Transaction Statement and to cause the Transaction Statement to be mailed to the Company’s shareholders as promptly as reasonably practicable. The Depositary understands that promptly
upon execution hereof, Buyer will file an amended Schedule 13D/A with the SEC, including a copy of this Agreement, and provide similar notices under Chilean law.
10. Further Assurances. Without limiting the other terms of this Agreement, after the Closing, the Depositary shall, and shall cause
the Custodian to, execute and deliver, or shall cause to be executed and delivered from time to time, such further instruments of conveyance and transfer that may be required to convey and deliver the Sale Shares to Buyer and to perfect Buyer’s
title thereto and to accomplish the transactions contemplated by this Agreement.
11. Termination.
(a) Prior to the Closing, this Agreement may be terminated and shall be of no further force or effect in the following events:
| |
(i) |
upon the written consent of each party hereto; |
| |
(ii) |
by either party hereto, if the Closing Date has not occurred on or before September 9, 2015 (the “Outside Date”); provided that the right to terminate pursuant to this Section 11(a)(ii) shall
not be available to a party hereto whose material breach of its covenants and agreements set forth in this Agreement was the primary cause of the failure of the Closing to occur by the Outside Date; |
8
| |
(iii) |
by either party hereto, if an injunction, restraining order or decree of any nature shall have been issued by any court, governmental authority or regulatory agency of competent jurisdiction or any other restriction
under applicable laws shall have been imposed that restrains or prohibits the consummation of the transactions contemplated by this Agreement, and such injunction, restraining order, decree or restriction shall have become final and non-appealable;
|
| |
(iv) |
by the Depositary if there has been a material breach, inaccuracy in or failure to perform any representation, warranty or covenant made by Buyer pursuant to this Agreement that would give rise to the failure of any of
the conditions specified in Section 3 and such breach, inaccuracy or failure (A) cannot be cured or (B) if capable of being cured, was not cured by Buyer by the earlier of (1) thirty (30) days after written notice thereof
was given by the Depositary to Buyer or (2) the Outside Date; provided that the right to terminate pursuant to this Section 11(a)(iv) shall not be available to the Depositary if it is in material breach of any provision of this Agreement;
|
| |
(v) |
by Buyer if there has been a material breach, inaccuracy in or failure to perform any representation, warranty or covenant made by the Depositary pursuant to this Agreement that would give rise to the failure of any of
the conditions specified in Section 3 and such breach, inaccuracy or failure (A) cannot be cured or (B) if capable of being cured, was not cured by the Depositary by the earlier of (1) thirty (30) days after written notice
thereof was given by Buyer to the Depositary or (2) the Outside Date; provided that the right to terminate pursuant to this Section 11(a)(v) shall not be available to Buyer if it is in material breach of any provision of this Agreement; or
|
| |
(vi) |
by the Depositary pursuant to and in accordance with Section 8(d) if a definitive agreement for a Superior Proposal has been entered into and Buyer has not delivered a Match Right Notice within ten
(10) business days of the Depositary’s delivery of a Superior Proposal Notice pursuant to Section 8(d). |
(b)
In the event of the termination of this Agreement in accordance with the provisions of Section 11(a), written notice thereof shall promptly be given to the other party hereto and the transactions contemplated hereby shall be abandoned without
further action by any of the parties hereto and without any further liability or obligation hereunder on the part of any party hereto or its respective affiliates; provided, however, that, notwithstanding a termination of this Agreement, each of the
parties hereto shall remain liable for any prior breach of its respective covenants hereunder.
9
12. Miscellaneous.
(a) All representations, warranties and covenants contained herein shall survive the execution and delivery of this Agreement and the delivery
of the Sale Shares.
(b) All fees and expenses incurred by any of the parties hereto shall be borne by the party incurring such fees and
expenses, except that Buyer shall pay the Depositary’s reasonable out-of-pocket legal fees and disbursements of counsel directly arising from the negotiation, execution and delivery of this Agreement by the Depositary, including, for the
avoidance of doubt, the Depositary’s obligations under Section 9.
(c) Any payment made pursuant to this Agreement shall be made
in Ch$ delivered to a bank account in Chile, except that any payment by Buyer of the Depositary’s reasonable out-of-pocket legal fees and disbursements of counsel made pursuant to Section 12(b) will be made in United States dollars.
(d) The parties hereto agree that irreparable damage would occur if any provision of this Agreement were not performed in accordance with the
terms hereof and that the parties shall be entitled to specific performance of the terms hereof, in addition to any other remedy to which they are entitled at law or in equity.
(e) This Agreement shall inure to the benefit of and be binding upon the parties hereto and their directors, officers, trustees, executors,
heirs, legal representatives, successors and assigns. The Depositary may not and shall not assign its obligations hereunder and any assignment in violation of this sentence shall be void. Buyer may at its option assign this Agreement to any of its
affiliates (including MetLife, Inc. and its subsidiaries). Nothing contained in this Agreement shall be deemed to give rise to any right in a person not a party hereto (other than any assignee of Buyer) or in the Depositary or Buyer on behalf of any
such person to seek enforcement of, or damages arising out of any alleged default with respect to, any provisions of this Agreement.
(f)
All notices and other communications under this Agreement shall be in writing and delivery thereof shall be deemed to have been made either (i) one (1) business day after such notice shall have been deposited with a nationally-recognized
overnight courier service, or (ii) when delivered by hand or transmitted by e-mail transmission, to the party entitled to receive the same at the address or e-mail address indicated below or at such other address or e-mail address as such party
shall have specified by written notice to the other parties hereto given in accordance herewith:
| |
(i) |
if to the Depositary, addressed to: |
The Bank of New York Mellon
101 Barclay Street
New York,
New York 10286
Attn.: ADR Administration
10
| |
(ii) |
if to Buyer, addressed to: |
MetLife Chile Inversiones Limitada
c/o MetLife, Inc.
1095 Avenue
of the Americas
New York, New York 10036
Attn.: Adam M. Hodes
E-mail
address:
with a copy (which shall not constitute notice) to:
MetLife, Inc.
1095 Avenue of
the Americas
New York, New York 10036
Attn.: Rolon A. Reed, III
E-mail address:
with a copy
(which shall not constitute notice) to:
Skadden, Arps, Slate, Meagher & Flom LLP
Four Times Square
New York,
New York 10036
Attn.: Paola Lozano
E-mail address:
(g) This
Agreement may not be amended except by an instrument in writing signed on behalf of each of the parties hereto. Any waiver by any party of a breach of any provision of this Agreement shall not operate as or be construed to be a waiver of any other
breach of such provision or of any breach of any other provision of this Agreement. The failure of a party to insist upon strict adherence to any term of this Agreement on one or more occasions shall not be considered a waiver or deprive that party
of the right thereafter to insist upon strict adherence to that term or any other term of this Agreement.
(h) Each of Buyer and the
Depositary have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be interpreted and construed as if drafted jointly by Buyer and
the Depositary and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement.
(i) Except to the extent required by applicable law or stock exchange regulations in the reasonable judgment of each of the Depositary’s
or Buyer’s legal counsel, none of the Depositary or Buyer will, and none of the Depositary or Buyer will permit any of their affiliates or representatives to, issue or cause the publication of any press release or other public announcement with
respect to or concerning the transactions contemplated by this Agreement without the prior written consent of the other party hereto.
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(j) Prior to the Closing, each party hereto shall promptly notify the other party hereto in
writing upon becoming aware of any events, circumstances, facts and occurrences arising subsequent to the date of this Agreement which would reasonably be likely to result in a material breach of a representation or warranty or covenant of such
party hereto in this Agreement or which would reasonably be likely to have the effect of making any representation or warranty of such party hereto in this Agreement untrue or incorrect in any material respect; provided that a breach of this
Section 12(i) shall not be considered for purposes of determining the satisfaction of the closing conditions set forth in Section 3.
(k) This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of New York, without reference to
the conflict of laws principles thereof.
(l) Each of Buyer and the Depositary hereby irrevocably consents and agrees that any legal
action or proceeding against it or any of its assets with respect to any of the obligations arising under or relating to this Agreement shall be brought by Buyer or by the Depositary exclusively in any state or federal court sitting in the State of
New York, and by execution and delivery of this Agreement, Buyer and the Depositary hereby irrevocably submits to and accepts with regard to any such action or proceeding, for itself and in respect of its property, the exclusive jurisdiction of the
aforesaid courts and irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of any action therein. Each party hereto agrees that the summons and complaint or any other process in any
action may be served by notice given in accordance with this Agreement, or as otherwise permitted by law. Each party hereto irrevocably waives the right to trial by jury.
(m) This Agreement constitutes the entire agreement and supersedes all prior agreements and understandings, whether oral or written, among the
parties hereto with respect to the subject matter hereof. This Agreement may not be amended orally, but may only be amended by an instrument in writing signed by each of the parties hereto.
(n) This Agreement may be executed in any number of counterparts, including via electronic means, each of which shall, when executed, be
deemed to be an original and all of which shall be deemed to be one and the same instrument.
[Signature Pages Follow]
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IN WITNESS WHEREOF, and intending to be legally bound hereby, each of the undersigned parties has
executed or caused this Agreement to be executed on the date first above written.
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| THE BANK OF NEW YORK MELLON |
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| By: |
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/s/ Joanne DiGiovanni Hawke |
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Name: Joanne DiGiovanni Hawke |
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Title: Managing Director |
[Signature Page to Share
Purchase Agreement]
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| METLIFE CHILE INVERSIONES LIMITADA |
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| By: |
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/s/ Randal W. Haase |
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Name: Randal W. Haase |
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Title: Authorized Representative |
[Signature Page to Share
Purchase Agreement]