United States securities and exchange commission logo
June 16, 2023
Renato Lulia Jacob
Group Head of Investor Relations
Ita Unibanco Holding S.A.
Pra a Alfredo Egydio de Souza Aranha, 100
04344-902 S o Paulo, SP, Brazil
Re: Banco Ita Chile
Schedule 13E-3
filed June 6, 2023
Schedule TO-T filed
June 6, 2023
Filed by Ita
Unibanco Holding S.A. et al.
File No. 005-80508
Dear Renato Lulia Jacob:
We have reviewed your filing and have the following comments. In
some of our
comments, we may ask you to provide us with information so we may better
understand your
disclosure.
Please respond to these comments by providing the requested
information or advise us as
soon as possible when you will respond. If you do not believe our
comments apply to your facts
and circumstances, please tell us why in your response.
After reviewing your response to these comments, we may have
additional comments.
All defined terms used herein have the same meaning as in your offer
materials, unless otherwise
indicated.
Schedule 13E-3 filed June 6, 2023
Settlement of the U.S. Offer Price, page iii
1. We note the disclosure
that the Chilean Offer may close before the U.S. Offer because
Chilean law limits the
number of days the Chilean Offer may remain open. If the Chilean
Offer closes before the
U.S. Offer, will Chilean holders who tender be paid before
tendering U.S. holders?
Please advise in your response letter. If yes, analyze how this is
consistent with the
requirements of Rule 14d-1(d)(2)(ii).
What are the differences between the U.S. Offer and the Chilean Offer?,
page v
2. The disclosure here and
on page 10 of the offer materials describes potential differences
between the withdrawal
rights provided in the U.S. and Chilean Offers. In your response
Renato Lulia Jacob
FirstName LastNameRenato
Ita Unibanco Holding S.A. Lulia Jacob
Comapany
June NameIta Unibanco Holding S.A.
16, 2023
June 16,
Page 2 2023 Page 2
FirstName LastName
letter, please explain whether a scenario could arise where withdrawal
rights in the
Chilean Offer could extend beyond those provided in the U.S. Offer. If
so, explain how
this would satisfy your Tier II obligation to make the U.S. Offer on
terms at least as
favorable as the Chilean Offer.
Purpose of and Reasons for the U.S. Offer; Plans for the Company After the U.S.
Offer, page 6
3. We note your disclosure that IUH and Purchaser are making the
Offers to increase the
weight of markets with structural growth in IUH s business
portfolio. Revise to clarify
how and why acquiring the Common Shares would increase the weight of
markets with
structural growth in IUH s business portfolio. See Instruction 1 and
Instruction 2 to Item
1013 of Regulation M-A.
4. Item 1013(d) of Regulation M-A requires a reasonably detailed
discussion of the benefits
and detriments of the transaction to the subject company, its
affiliates and unaffiliated
security holders, and the benefits and detriments must be quantified
to the extent
practicable. Please revise to include this disclosure. See Instruction
1 and Instruction 2 to
Item 1013 of Regulation M-A.
5. We note your disclosure that by extending the Offers at this time,
IUH and Purchaser
believe that they are offering shareholders a fair price... Please
disclose IUH and
Purchaser s reasons for undertaking the transaction at this time.
Refer to Item 1013(c) of
Regulation M-A.
Fairness of the U.S. Offer., page 8
6. In support of your determination regarding the fairness of the U.S.
Offer, you state that
there has been a substantial decline in the equity markets,
both in the U.S. and in
Chile. For clarity, please revise to disclose the time periods and
specific equity markets
to which you are referring.
7. Refer to the disclosure on page 10. Please revise this section
generally to address the
procedural fairness of the transaction and why these participants
believe it is procedurally
fair in the absence of the safeguards outlined in Item 1014(c) and (d)
of Regulation M-A.
See Item 8 of Schedule 13E-3.
8. Expand this section generally to address how the bidders considered
the fairness to
holders who do not tender into the Offers, given that there is no
intention to conduct a
second-step "squeeze out." You have noted for example that the ADSs
may be delisted
after the Offers, resulting in considerably less liquidity for
remaining holders.
9. Refer to the first sentence of the last paragraph in this section, on
page 11 of the offer to
purchase. Remove the qualifier "believe," since IUH and Purchaser are
in a position to
know whether the discussion provided addresses all material factors
they considered in
assessing fairness.
Related Party Transactions, page 15
Renato Lulia Jacob
FirstName LastNameRenato
Ita Unibanco Holding S.A. Lulia Jacob
Comapany
June NameIta Unibanco Holding S.A.
16, 2023
June 16,
Page 3 2023 Page 3
FirstName LastName
10. Page 188 of the Company s 2022 Form 20-F filed on April 27, 2023
includes a table with
income received by the Company from (and expenses paid by the Company
to) Ita
Unibanco during the Company s past three fiscal years. To the extent
applicable, provide
the disclosure required by Item 1005 of Regulation M-A regarding such
transactions.
Risks of Tendering Common Shares in the Chilean Offer Instead of the U.S.
Offer, page 15
11. We note your disclosure that the terms and conditions of the U.S.
Offer and the Chilean
Offer are substantially the same (emphasis added). Disclose the
differences between the
conditions in the U.S. Offer and those in the Chilean Offer.
Source and Amount of Funds, page 38
12. Disclose the existence of any alternative financing plans or
arrangements in the event
Purchaser does not have the necessary funds to pay the offer
consideration and related
fees and expenses. If there are none, so state. Refer to Item 1007(b)
of Regulation M-A.
Conditions to the U.S. Offer, page 40
13. We note the following disclosure on page 40: The occurrence and/or
existence of any of
the foregoing conditions will be determined in our sole discretion."
Reserving the right to
determine the satisfaction of an offer condition in the bidder's "sole
discretion" raises
illusory offer concerns under Regulation 14E. See Compliance and
Disclosure
Interpretation 101.02 under "Tender Offer Rules and Schedules" (March
17, 2023) at
www.sec.gov. Please revise.
14. See our last comment above. Refer to the following disclosure on page
40: "These
conditions are for our sole benefit and may be asserted by us
regardless of the
circumstances giving rise to any of these conditions..." All offer
conditions must be
objective and outside the control of the bidder in order to avoid
illusory offer concerns
under Regulation 14E. Revise the language relating to the
circumstances that may
"trigger" an offer condition to avoid the implication that they may be
within the bidders'
control.
15. Reserving the right to waive a condition at any time and from time
to time is
inconsistent with your obligation to inform shareholders promptly if
events occur that
"trigger" an offer condition. Please revise this language and the
following in the last
sentence of this section: "Our failure at any time to exercise any of
these rights shall not
be deemed a waiver of any of these rights; the waiver of any of these
rights with respect to
particular facts and other circumstances shall not be deemed a waiver
with respect to any
other facts and circumstances; and each of these rights shall be
deemed an ongoing right
that may be asserted at any time and from time to time. If an event
occurs that implicates
an offer condition, bidders must promptly inform shareholders whether
they will waive
the condition and continue with the Offers, or terminate the Offers
based on that
condition.
Renato Lulia Jacob
Ita Unibanco Holding S.A.
June 16, 2023
Page 4
General
16. We note that the offer commenced on June 6, 2023 and is scheduled to
expire at 5:30 p.m.
ET on July 5, 2023. Please revise the offer so that it is open 20 full
business days in
compliance with Rule 14e-1(a). In this respect, Rule 14d-1(g)(3)
defines the term
business day to mean any day, other than Saturday, Sunday or
a federal holiday, and
shall consist of the time period from 12:01 a.m. through 12:00
midnight Eastern time.
17. We note your reference to Section 27A of the Securities Act of 1933
and Section 21E of
the Securities Exchange Act of 1934. Note that the safe harbor
protections for forward-
looking statements contained in those federal securities laws do not
apply to statements
made in connection with a going-private transaction or a tender offer.
See Sections
21E(b)(1)(E) and 21E(b)(2)(C) of the Securities Exchange Act of 1934.
Please revise.
18. We note the disclaimer that you undertake no obligation to publicly
update any forward-
looking statements, whether as a result of new information, future
events or otherwise.
This disclaimer is inconsistent with your obligations under Rule
14d-6(c). Please revise.
19. Clarify whether the bidders will cover the fees associated with
tendering ADSs or whether
they will be deducted from the proceeds to be paid for such tendered
securities.
20. We note that U.S. persons who hold shares in direct form rather than
in ADS form may
tender into the Chilean Offer. In your response letter, please advise
whether permitting
them to tender into the Chilean Offer is required under Chilean law.
We remind you that the filing persons are responsible for the accuracy
and adequacy of
their disclosures, notwithstanding any review, comments, action or absence of
action by the staff.
Please direct any questions to Christina Chalk at (202) 551-3263 or Blake
Grady at (202)
551-8573.
FirstName LastNameRenato Lulia Jacob Sincerely,
Comapany NameIta Unibanco Holding S.A.
Division of
Corporation Finance
June 16, 2023 Page 4 Office of Mergers
& Acquisitions
FirstName LastName