[Federal Register Volume 60, Number 43 (Monday, March 6, 1995)]
[Notices]
[Pages 12260-12261]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-5334]



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SECURITIES AND EXCHANGE COMMISSION
[Investment Company Act Rel. No. 20925/International Rel. No. 788 812-
8970]


Enersis S.A.; Notice of Application

February 27, 1995.
agency: Securities and Exchange Commission (``SEC'').

action: Notice of Application for Exemption under the Investment 
Company Act of 1940 (``Act'').

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applicant: Enersis S.A.

Relevant Act Section: Section 2(a)(9).

summary of Application: Applicant seeks an order declaring that it 
controls [[Page 12261]] Empresa Nacional de Electricidad S.A. 
(``Endesa''), notwithstanding that it owns less than 25% of its voting 
securities.

filing date: The application was filed on April 28, 1994 and amended on 
July 8, 1994 and October 6, 1994.

hearing or notification of hearing: An order granting the application 
will be issued unless the SEC orders a hearing. Interested persons may 
request a hearing by writing to the SEC's Secretary and serving 
applicant with a copy of the request, personally or by mail. Hearing 
requests should be received by the SEC by 5:30 p.m. on March 23, 1995, 
and should be accompanied by proof of service on applicant, in the form 
of an affidavit or, for lawyers, a certificate of service. Hearing 
requests should state the nature of the writer's interest, the reason 
for the request, and the issues contested. Persons who wish to be 
notified of a hearing may request such notification by writing to the 
SEC's Secretary.

addresses: Secretary, SEC, 450 Fifth Street NW., Washington, DC 20549. 
Applicant, Santo Domingo 789, Santiago, Chile.

for further information contact: Fran Pollack-Matz, Senior Attorney, at 
(202) 942-0570, or Barry Miller, Senior Special Counsel, at (202) 942-
0564 (Division of Investment Management, Office of Investment Company 
Regulation).

Supplementary Information: The following is a summary of the 
application. The complete application may be obtained for a fee from 
the SEC's Public Reference Branch.

Applicant's Representations

    1. Applicant is a Chilean holding company primarily engaged through 
its majority-owned subsidiaries and related companies in the utility 
business. Applicant is not registered under the Investment Company Act 
by virtue of its reliance on rule 3a-1.\1\

    \1\Rule 3a-1 provides that an issuer meeting the statutory 
definition of an investment company is not an investment company if: 
(a) no more than 45% of the value of its total assets (exclusive or 
government securities and cash items) consists of securities other 
than government securities, securities issued by employee securities 
companies, securities of certain majority-owned subsidiaries, and 
securities issued by companies under the primary control of the 
issuer that are not investment companies; and (b) no more than 45% 
of its income after taxes (over the last four fiscal quarters 
combined) is received from such securities.
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    2. Endesa is a Chilean electric generation company, Applicant owns 
directly and indirectly approximately 17% of Endesa and is Endesa's 
largest shareholder. Four of the five remaining largest shareholders of 
Endesa are entities comparable to United States pension funds. Under 
Chilean law, the amount one of these entities can invest in a company 
similar to Endesa is the lesser of 7% of its assets or 7% of Endesa's 
equity. The fifth large shareholder of Endesa is a company owning 
approximately 3.4% of Endesa's shareholder equity. Applicant, 
therefore, owns more than twice as many shares as the next largest 
shareholder.
    3. Three of Endesa's nine member board are Enersis officers or 
directors. Enersis's equity ownership gives it the power to elect two 
of Endesa's directors; a third Enersis official on Endesa's board 
publicly campaigned for the position. These persons also hold the 
positions of Enersis's Chairman of the Board, its Chief Executive 
Officer, and its Director of Planning and Development. Applicant's 
Chief Executive Officer is the Chairman of the board of Endesa. The 
Chairman is entitled to cast a second vote in the event of a tie of 
Endesa's board of directors, thereby giving Enersis an additional vote.
    4. Enersis, previously a government-owned utility, was privatized 
in 1987 and restructured to become a holding company. Since its 
privatization, all of Enersis's stock acquisitions have been of utility 
businesses. Enersis's strategy has been to concentrate its activities 
on its core utility business and to take stock positions in other 
entities only under circumstances where it is the dominant shareholder 
or where it and Endesa together are the dominant shareholders of the 
entity whose stock is being acquired.
    5. Jose Yuraszeck, Enersis's Chief Executive Officer, became 
Endesa's Chairman in April 1992. He is commonly referred to as the 
``Electricity Czar'' in Chile and is identified by the public as 
personifying Endesa.\2\ Mr. Yuraszeck is also Chairman of Endesa's 
subsidiary formed to build, own, and mange Endesa's major power plant 
development.

    \2\``Electricity Czar,'' Que Pasa, May 1992.
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    6. Endesa's Director of Planning and Development was assigned to 
Endesa at Enersis's direction and the planning and development staffs 
of Enersis and Endesa have collaborated on various projects.

Applicant's Legal Analysis

    1. Section 2(a)(9) defines ``control'' as ``the power to exercise a 
controlling influence over the management or policies of a company, 
unless such power is solely the result of an official position with 
such company.'' Section 2(a)(9) also creates a presumption that owners 
of more than 25% of a company's voting securities control such company, 
and the owners of 25% or less of a company's voting securities do not 
control such company. A securityholder may obtain an SEC order 
rebutting either presumption by producing evidence to the contrary.
    2. Applicant seeks an order of the SEC declaring that it controls 
Endesa, notwithstanding the presumption under the Act that ownership of 
less than 25% of a company's voting securities is insufficient to 
establish control.\3\

    \3\Any order concerning the application will be limited to 
determining whether Enersis controls Endesa under section 2(a)(9). 
Enersis is not seeking any determination as to whether it 
``primarily'' controls Endesa for purposes of rule 3a-1 or whether 
applicant falls within the definition of investment company under 
the Act.
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    3. Applicant argues that the facts set forth in the application are 
sufficient to support a finding that applicant controls Endesa. 
Applicant holds the largest share of Endesa's voting securities and has 
significant representation on Endesa's board of directors.

    By the Commission.
Margaret H. McFarland,
Deputy Secretary.
[FR Doc. 95-5334 Filed 3-3-95; 8:45 am]
BILLING CODE 8010-01-M