ITALY Law and Practice Contributed by: Paolo Balboni, Luca Bolognini, Giulio Monga and Carmine Antonio Perri, ICT Legal Consulting
• the securities offered as consideration are already admitted to trading and represent less than 20% of the securities of the same class already listed (Article 1 (5) of the Prospectus Regulation); • the offer takes place in connection with a merger, demerger or takeover, provided that an equivalent information document (containing financial state- ments, risk factors and full transaction details) is made available to investors (Article 1 (4)(f) of the Prospectus Regulation); or • other exemptions established by Article 1 of the Prospectus Regulation apply. In share-for-share offers or mergers, the bidder must publish either a prospectus or an exemption informa- tion document meeting Consob’s standards of com- pleteness and comparability. Cash-only offers are outside the scope of the pro- spectus rules. The bidder’s shares must be listed or admitted to trading on a regulated market in Italy or another EEA jurisdiction. If the bidder’s shares are not listed, Con- sob may require a full prospectus and simultaneous admission to trading. 10.3 Producing Financial Statements The offer document or prospectus must include audit- ed financial statements and, where relevant, pro forma financial information showing the expected impact of the transaction. Under Article 94 TUF and the Prospectus Regulation, bidders (or issuers, where applicable) are required to disclose all information necessary for investors to make an informed assessment of the bidder’s financial position, results and prospects. Prospectus Regulations and Delegated Regulation EU 2019/680 clarifies the type of financial information to be included in the prospectus (or, where applicable, the offer document). 10.4 Disclosure of Transaction Documents Pursuant to Article 102 (4) TUF and Consob Regula- tion No 11971/1999, the offer document must be sub- mitted to Consob for approval and, once approved,
made publicly available through the channels indicat- ed by Consob (typically, the website of the bidder and the target, and the Borsa Italiana as market operator). With regard to mergers, two provisions of the Civil Code are relevant: • Under Article 2501-ter, the boards of the merging entities must draw up a merger plan including, at least, some elements indicated by Article 2501- ter(1). The plan must be filed for registration with the Companies’ Register of each participating company or, alternatively, published on the com- pany website. • Under Article 2501-septies, a copy of the merger plan, together with the financial statements of the last three financial years, the directors’ explanatory report (Article 2501-quinquies), and the experts’ report on the exchange ratio (Article 2501-sexies), must be made available to shareholders – either at the registered office or on the company’s website – for at least 30 days before the meeting that will approve the merger. Shareholders are entitled to obtain free copies. For listed companies, those obligations are com- plemented by Article 70 of Consob Regulation No 11971/1999, according to which the same documents required under Article 2501-septies Civil Code (except for the financial statement of the last three financial years) must be made available to the public by the listed issuers at least 30 days before the sharehold- ers’ meeting, using the regulated disclosure channels (systems for the dissemination of regulated informa- tion or SDIR), publication on the company’s website, and notification to Consob. After completion, listed issuers must also transmit a copy of the merger deed and the updated by-laws to Consob within ten and 30 days, respectively, from registration with the Companies’ Register. Under Article 122 of TUF, any shareholders’ agree- ments relating to the exercise of voting rights in listed companies, or in companies controlling or controlled by listed issuers will be, within five days of their stipu- lation:
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