ITALY Law and Practice Contributed by: Roberto Bonsignore, Paolo Rainelli, Gerolamo da Passano and Nicole B. Puppieni, Cleary Gottlieb Steen & Hamilton LLP
7.2 Type of Disclosure Required Under EU regulations, when new shares are offered to the public or admitted to trading on an Italian regulated market in connection with (i) a takeover by means of an exchange offer or (ii) a merger or demerger, a disclosure docu - ment (also known as an “exemption document” ) must be prepared instead of a full prospectus, to enable investors to make informed investment decisions. The exemption document should contain sufficient and comprehensible informa - tion about: • the prospects of the issuer and, depending on the nature of the transaction, of the target company or the company being incorporated or demerged, including significant changes in their business and financial position since the end of the previous financial year; • the rights associated with the equity securi - ties; and • the transaction itself and its impact on the issuer. In addition, under Italian law, the shareholders of the relevant company (offeror, incorporat - ing entity in the merger, demerging entity) must be provided with an information document on the transaction if it exceeds certain materiality thresholds and the company has not opted out of this disclosure obligation. 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 con - solidated (if applicable) financial statements released within the 12 months prior to the pub - lication of the exemption document. Depending on the nature of the transaction, financial state - ments may also be required from the company being acquired, the company being incorporated
tion because – by operation of Italian law (and thus irrespective of any contractual provisions) – shareholders may unilaterally terminate their existing commitments to tender in case of a competing offer. This is one of the reasons why bidders in Italy often prefer to structure the transaction not as a one-step voluntary offer supported by undertak - ings to tender given by the major shareholders, but rather as a two-step transaction consisting of the “private” acquisition of a controlling stake from the major shareholders pursuant to one or more sale and purchase agreements (which are not subject to any statutory out in the event of a competing offer), followed by a mandatory offer for all the remaining shares of the target com - pany. The bidder must formally announce the offer by means of a detailed press release, including all material terms of the offer, which must be pub - lished promptly after the bidder has decided to launch the offer in the case of a voluntary offer. In the case of a mandatory offer, the announce - ment must be made promptly after the occur - rence of the transaction or other circumstance that causes the bidder to exceed a relevant MTO threshold in the target company. If the mandatory offer follows a prior transac - tion, such as the acquisition of more than 25% (where applicable) or 30% of the voting rights in the target, the public announcement of the prior transaction will usually include a reference to the launch of a subsequent mandatory offer. 7. Disclosure 7.1 Making a Bid Public
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