ITALY Law and Practice Contributed by: Roberto Bonsignore, Paolo Rainelli, Gerolamo da Passano and Nicole B. Puppieni, Cleary Gottlieb Steen & Hamilton LLP
or the company being demerged. These finan - cial statements must be prepared in accordance with International Financial Reporting Stand - ards (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 indi - cators of the size of the issuer’s business, pro forma financial information must be included. Such pro forma financial information should be accompanied by a report prepared by an inde - pendent auditor. In the case of an exchange offer, the offer docu - ment 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 transaction, such as the initial press release announcing the transaction or the detailed press release announcing the decision or obligation to launch a tender offer, it is customary for the relevant material terms of the transaction docu - ments 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 trans - action documents contain provisions that con - stitute “shareholders’ agreements” involving a company listed on the main Italian stock market or one of its parent companies. Shareholders’ agreements comprise various arrangements, such as:
• share transfer restrictions; or • commitments to tender shares in a takeover bid. In such cases, a full copy of the relevant provi - sions constituting the shareholders’ agreements must be provided to CONSOB and filed with the Companies Registry. Consequently, this docu - ment, in principle, becomes accessible to any person interested in reviewing it. The main duties of directors in the context of a business combination consist of the duties of care and loyalty to pursue the interests of the company and its shareholders by maximis - ing the value of their investment. This includes tasks such as determining the exchange ratio in a merger, negotiating the terms of an acqui - sition, or facilitating the successful conclusion of a tender offer that is deemed beneficial for the generality of the shareholders. While these duties primarily benefit the company and its shareholders, directors must also consider the positions of other stakeholders, particularly the company’s creditors. 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 inde - pendent directors plays a significant role in two scenarios: 8. Duties of Directors 8.1 Principal Directors’ Duties • transactions, including business combina - tions, undertaken by listed companies with related parties – material related-party trans -
• voting or consultation agreements; • certain other governance provisions;
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