ITALY Law and Practice Contributed by: Roberto Bonsignore, Paolo Rainelli, Gerolamo da Passano and Nicole Puppieni, Cleary Gottlieb Steen & Hamilton LLP
The thresholds triggering disclosure obligations for potential or combined shareholdings are 5%, 10%, 15%, 20%, 25%, 30%, 50% and 66.6%. These thresholds are calculated as a percentage of the total voting shares of the listed company (or as a percent - age of the total number of voting rights outstanding from time to time if the listed company has loyalty shares or multiple voting shares granting more than one voting right). In principle, and subject to possible exceptions in particular situations, the acquisition of a potential shareholding through derivatives does not trigger merger control notification obligations under Italian competition law. Such obligations typically arise only with respect to the actual acquisition of the underlying shares, provided that the notification conditions set forth in 2.4 Antitrust Regulations are met. 4.6 Transparency Any shareholder who acquires at least 10%, 20% or 25% of the total voting shares of a company listed on the Italian main stock market (or of the total number of voting rights if the listed company has loyalty shares or multiple voting shares granting more than one voting right) must disclose their intentions for the following six months. This disclosure must be made within four trading days and sent to the listed company and to CONSOB, which publishes it. The disclosure should include the following points: • how the acquisition was financed; • whether the shareholder is acting alone or in concert with other persons, including intentions regarding any shareholders’ agreements concern - ing the target to which the shareholder is already a party; • whether the shareholder intends to continue acquiring shares and/or to acquire control or exer - cise a dominant influence over the management of the company, along with the strategy to achieve this result; and • whether the shareholder intends to change the composition of the board of directors or the board of statutory auditors ( collegio sindacale ) of the company.
If any of the above intentions change during the six-month period, the disclosure must be updated accordingly. Disclosure is not required if the acquisition triggers a mandatory tender offer, as in this case the bidder’s intentions will be announced in a separate disclosure relating to the tender offer.
5. Negotiation Phase 5.1 Requirement to Disclose a Deal
Pursuant to the EU’s Market Abuse Regulation (Regu - lation (EU) No 596/2014 of 16 April 2014, as amend - ed), Italian listed target companies are obliged to immediately disclose any “inside information” to the public via a press release. Inside information refers to
information that is: • precise in nature;
• not publicly available; • price-sensitive; and • directly or indirectly related to the listed target company. In protracted processes like the preparation and nego - tiation of a public M&A deal, intermediate steps may qualify as inside information if they are sufficiently pre - cise. This may occur, for example, when a potential bidder approaches the target’s board to request due diligence, submits a non-binding offer letter, or enters into a letter of intent. There are no hard and fast rules, and the assessment must be made on a case-by-case basis, considering several factors (eg, the degree of certainty regarding the consideration to be offered to the target’s shareholders and the degree of likelihood of the offer being completed). However, the listed target company may opt to delay the disclosure of inside information under the follow - ing conditions: • if immediate disclosure would likely prejudice the legitimate interests of the target, such as, arguably, pursuing and possibly completing an M&A transac - tion in the interest of the target and its sharehold - ers;
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