ITALY Law and Practice Contributed by: Roberto Bonsignore, Paolo Rainelli, Gerolamo da Passano and Nicole B. Puppieni, Cleary Gottlieb Steen & Hamilton LLP
• asset deals, entailing acquiring the target company’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 concern; 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 Ital - ian law does not provide for cash-out mergers. Where the target company is listed, most acqui - sitions 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 Irrevocable Commit- ments ). 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 ( Commis- sione Nazionale per le Società e la Borsa ), the Italian regulator for the stock market and listed
companies. Its responsibilities include oversee - ing tender or exchange offers, share issues, cor - porate governance rules, public disclosure and compliance with market abuse regulations. Other regulators that may be involved in an Ital - ian 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 com - pany 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 financial institutions; (b) IVASS ( Istituto per la Vigilanza sulle As- sicurazioni ) for acquisitions of insurance companies; and (c) AGCOM ( Autorità per le Garanzi.e. nelle Comunicazioni ) for acquisitions of tel - ecommunications companies. 2.3 Restrictions on Foreign Investments Foreign investment in Italy may be subject to restrictions in certain sectors deemed relevant for national security, such as, among others, defence, energy, transport, communications and finance, based on the EU FDI Regulation. These restrictions vary depending on the nationality of the investor, the sector involved and the percent - age of shares or voting rights acquired by the foreign investor in the target company (see 2.6 National Security Review ). Regardless of the sector of investment, if a for - eign country imposes restrictions on an Italian investor seeking to establish or acquire a com - pany in that country, Italy applies reciprocal
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