ITALY Law and Practice Contributed by: Roberto Bonsignore, Paolo Rainelli, Gerolamo da Passano and Nicole Puppieni, Cleary Gottlieb Steen & Hamilton LLP
industrial companies and ongoing strategic acquisi - tions aimed at expanding technological capabilities and international reach. In addition, energy, infrastructure and digital infra - structure assets attracted significant investor interest, supported by energy transition initiatives, digitalisation trends and long-term demand from institutional inves - tors. The consumer and luxury sector also continued to generate transactions, driven by the global attrac - tiveness of Italian brands and strategic investments by both corporate buyers and financial sponsors. 2. Overview of Regulatory Field 2.1 Acquiring a Company The main techniques for acquiring an Italian company are: • share deals, involving the acquisition of shares of the target company; • asset deals, entailing acquiring the target com - pany’s business as a going concern; • “mixed” deals, involving the acquisition of shares of a newly established entity to which the target company contributes its business as a going con - cern; and • mergers – this method is less frequently used. In the first three cases, consideration may be in cash or, less frequently, in securities issued or held by the acquirer (eg, exchange offers), or a combination of both. In the case of a merger, the consideration may only consist of shares, as Italian law does not provide for cash-out mergers. Where the target company is listed, most acquisitions take the form of share deals, which are structured in one of two ways: • a two-step transaction, involving the private acquisition of a controlling stake from the major shareholder(s) of the target company, governed by a sale and purchase agreement, followed by a mandatory tender offer for all the remaining shares of the target company (see 6.2 Mandatory Offer Threshold ); or
• a one-step transaction, involving a voluntary tender offer for all the target’s shares, often supported by commitments from the target’s main shareholder(s) to tender their shares in the offer (see 6.11 Irrevo- cable Commitments ). In both cases, the transaction may also involve a rollover by selected selling shareholders of the listed target. 2.2 Primary Regulators The primary regulator for M&A activity involving Italian listed companies is CONSOB ( Commissione Nazionale per le Società e la Borsa ), the Italian regulator for the stock market and listed companies. Its responsibilities include overseeing tender or exchange offers, share issues, corporate governance rules, public disclosure and compliance with market abuse regulations. Other regulators that may be involved in an Italian public (or private) M&A transaction include: • the Antitrust Authority for merger control review (see 2.4 Antitrust Regulations ); • the Italian government for national security review (see 2.6 National Security Review ); and • sector-specific regulators if the target company operates in a regulated industry, with examples including: (a) the Bank of Italy (and/or the European Central Bank) for acquisitions of banks and other finan - cial institutions; (b) IVASS ( Istituto per la Vigilanza sulle Assicurazi - oni ) for acquisitions of insurance companies; and (c) AGCOM ( Autorità per le Garanzie nelle Comu - nicazioni ) for acquisitions of telecommunica - tions companies. 2.3 Restrictions on Foreign Investments Foreign investment in Italy may be subject to restric - tions in certain sectors deemed relevant for national security – notably, defence and national security, ener - gy, transport, communications, finance, and others based on the EU FDI Regulation. These restrictions vary depending on the nationality of the investor, the sector involved and the percentage of shares or voting
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