ITALY Law and Practice Contributed by: Roberto Bonsignore, Paolo Rainelli, Gerolamo da Passano and Nicole Puppieni, Cleary Gottlieb Steen & Hamilton LLP
7.3 Producing Financial Statements The exemption document referred to in 7.2 Type of Disclosure Required must incorporate the annual (and half-yearly) standalone and consolidated (if applicable) financial statements released within the 12 months prior to the publication of the exemption document of the issuer/offeror. Depending on the nature of the transaction, financial statements may also be required from the company being acquired, the company being incorporated or the company being demerged. These financial statements must be prepared in accordance with International Financial Reporting Standards (IFRS), or with local Generally Accepted Accounting Principles (GAAP) if the relevant company is not compelled to use IFRS. If there are particularly significant changes, defined as variations of more than 25% in one or more indicators of the size of the issuer/offeror’s business, pro forma financial information must be included. Such pro forma finan - cial information should be accompanied by a report prepared by an independent auditor. In the case of an exchange offer, the offer document must include financial statements for the last two financial years for the bidder and the issuer, if the offeror is the controlling shareholder of the issuer. 7.4 Transaction Documents In the context of public disclosures related to a trans - action, such as the initial press release announcing the transaction or the detailed press release announc - ing the decision or obligation to launch a tender offer, it is customary for the relevant material terms of the transaction documents to be described or mentioned. However, the bidder is generally not obliged to provide a full copy of the transaction documents to the public. There is an exception to this rule when the transaction documents contain provisions that constitute “share - holders’ agreements” involving a company listed on the main Italian stock market or one of its parent com - panies. Shareholders’ agreements comprise various arrangements, such as: • voting or consultation agreements; • certain other governance provisions; • share transfer restrictions; or • commitments to tender shares in a takeover bid.
In such cases, a full copy of the relevant provisions constituting the shareholders’ agreements must be provided to CONSOB and filed with the Companies Registry. Consequently, this document, in principle, becomes accessible to any person interested in reviewing it.
8. Duties of Directors 8.1 Principal Directors’ Duties
The main duties of directors in the context of a busi - ness combination consist of the duties of care and loyalty to pursue the interests of the company and its shareholders by maximising the value of their invest - ment. This includes tasks such as determining the exchange ratio in a merger, negotiating the terms of an acquisition, or facilitating the successful conclusion of a tender offer that is deemed beneficial for the gener - ality of the shareholders. While these duties primarily benefit the company and its shareholders, directors must also consider the positions of other stakehold - ers, such as the company’s creditors, its employees, the environment and the affected communities. 8.2 Special or Ad Hoc Committees It is uncommon for boards to establish special or ad hoc committees in business combinations involving unaffiliated counterparties. However, a board committee consisting of independ - ent directors plays a significant role in two scenarios: • transactions, including business combinations, undertaken by listed companies with related par - ties – material related-party transactions require, among other things, a favourable opinion from a committee comprising independent and unre - lated directors regarding the company’s interest in pursuing the transaction and the adequacy and fairness of its terms; and • tender offers initiated by insiders – the board’s opinion of the offer must be preceded by a sepa - rate opinion from a committee of independent directors.
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