ITALY Law and Practice Contributed by: Roberto Bonsignore, Paolo Rainelli, Gerolamo da Passano and Nicole B. Puppieni, Cleary Gottlieb Steen & Hamilton LLP
and its implementing EU and Italian laws and regulations – on carrying out transactions while in possession of “inside information” (eg, price-sensitive non-public information) concerning the listed target company or its financial instruments. This may be relevant, for example, in a scenario where, as is often the case in Italian public M&A transactions, the bidder is already negotiating a potential takeover bid/control transaction with selected shareholders of the target or possibly the board of directors of the target, or, in some cases, is carrying out limited due diligence on the target. • Stakebuilding purchases may impact the price to be paid for the target shares in a sub - sequent mandatory offer, as the price offered in a mandatory offer cannot be lower than the highest price paid by a bidder during the 12 months preceding the official announcement of the offer. 4.4 Dealings in Derivatives Dealings in derivatives as a means to carry out stakebuilding are generally permitted, subject to the disclosure requirements outlined in 4.5 Fil- ing/Reporting Obligations . Specific and tempo - rary restrictions on short selling may also be set by market authorities. 4.5 Filing/Reporting Obligations As indicated in 4.2 Material Shareholding Dis- closure Threshold , the obligation to disclose the crossing of certain shareholding thresholds in an Italian listed company applies not only to actual shareholdings (shares with voting rights) but also to potential shareholdings held through call options or other physically or cash-settled deriv - atives, or other long positions on the company’s shares, and to the combination of actual and potential shareholdings. Disclosure is made by
submitting a form to the listed company and to CONSOB, which publishes a summary thereof. 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 percentage 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 excep - tions 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 com - pany 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 disclo - sure should include the following points: • how the acquisition was financed; • whether the shareholder is acting alone or in concert with other persons, including inten - tions regarding any shareholders’ agreements concerning the target to which the sharehold - er is already a party;
950 CHAMBERS.COM
Powered by FlippingBook