Company law, shareholders’ agreements, Consob inspection verification pursuant to art. 115 of the Legislative Decree of 24 February 1998, n. 58 – TUF, Court of Cassation, section 2, Judgment no. 770_2017

Essential lines of the topic

Appeal against the decree of the Court of Appeal of Trento

On the merits, the Court of Trent noted that the existence of the pact appears proven by means of multiple and converging elements, which allow us to trace the unknown fact and therefore the agreement for the convergent purchase of shares … … to be able then to control through a majority stake thus realized, purchase completed at the same time by the pledgee creditor of the whole package necessary to modify, for its consistency, the balance of the … and in the imminence of the already called assembly for the appointment of the board of directors.

Considering that the activity of … .. has been widely tested in the preparation of the agreement and in its concrete execution, the territorial Court considered the reduction in the minimum edictal, also in relation to the roles, quite different, in relation to the sanction imposed on it; , covered by the two accused.

In this case, the judge of merit based its conviction on the existence of an agreement between the three companies aimed at achieving control of …. and avoiding the obligation of public tender offer by examining the known facts that emerged in the course of education, evaluating them all together and through each other.

To this end the Court of Appeal considered: – the e-mail of May 6, 2010 with which the …. made known to … the outcome of the meeting, that same day, with the managing director of … (… ..) regarding the transaction that the company intended to formalize for the control of … (in this text, highlighting, besides the stock plot that determined the control of the company, all the elements necessary to achieve the desired result, with the use of expressions with the univocal tenor about the awareness of the obligations that such an operation imposed on the participants and that they intended instead to evade through an agreed purchase of the securities);

– the subsequent e-mail of the same … .. (always addressed to …) of May 20, 2010, in which the opponent made known the developments of the operation (“he called a little while ago … telling me that he closed today in Milan the negotiation with the Bank …. 6 euros per share, in his idea we should divide the titles as follows _ “);

– the e-mail of May 25, 2010 which updated the … on further developments (“… signs a preliminary purchase contract tomorrow, then when all is perfected, two of their members will resign and leave room for one of our members both you and … for … “); – finally, the documentation (“confidential and confidential”) distributed on the occasion of the Board of Directors on May 24, 2010 (which explicitly states, among other things, that “the group … is negotiating, in a joint venture with …. , which holds about 6% of the capital of …., the purchase of the pledge package at the Bank …. 1,000,000 shares for 17% of the capital – but is in the condition of not being able to acquire the entire package as it would hold more than 30% of …., triggering the obligation of OPA at a much higher price than the current one … the group … has verified with La Finanziaria … a potential interest in participating in the ‘transaction by buying part of the securities pledged at the Bank … the possible allocation for the purchase of 1,000,000 shares … would be as follows _9.

The judge of merit made recourse to presumptions, not only by proceeding with an analysis of the probative relevance of the individual indicative elements, but also by subjecting them to a global examination and evaluating their gravity, precision and concordance.

The reasoning adopted in this regard is congruous from the logical point of view, free from errors of law and respectful of the principles that govern the test for presumptions.

The sixth means denounces the violation and misapplication of the regulation of the shareholders’ agreements pursuant to art. 122 and 101 TUF in the formulation following the amendment made with the Legislative Decree no. 146 of 2009 and 2341-bis cod. civ. According to the applicants, the shareholders’ agreements for the purchase of shares should be identified following a functional approach, circumscribing the case in order to include only those agreements with which two or more parties agree on the purchase of the shares, in view of the future joint management of the securities that will be purchased: the discipline requires the existence of an agreement, which – it is assumed – constitutes a clear stance against the hypothetical sufficiency of a mere convergent conduct of two or more subjects. It is also emphasized that in the contested decision, the obligations that … .. and / or … .. would have been assumed towards … and those who … would have taken on …. and / or ….

6.1. – The reason is unfounded.

The Court of Trento has ascertained that the Budget … he planned the purchase, together with … and to …, of the actions … at the outcome of a “preliminary investigation” conducted by … and in the clear awareness that the agreement could not be disclosed because it would have led to a participation in … that needed the public offer, with all the risks on the purchase price and the success of the operation, once the operation to the control of the same …. through a board of directors expression of the consortium.

Through serious, precise and concordant indications, the judge of merit has identified both the content of the shareholders’ agreement, consisting in the “convergent” purchase of the shares …, and the purpose of the same, represented by the achievement of control, through a majority shareholding so realized, of all the necessary package to modify, for its consistency, the balances of the …., in imminence of the already convened assembly for the appointment of the board of administration.

From this it follows that the Court of Appeal has correctly applied the regulations concerning shareholders’ agreements and concerted action, having faced a situation in which the companies involved have agreed, in the awareness of having to circumvent the obligation to bid , the acquisition of the controlling interest in …, a purchase functionalized to the joint management of the participation and the appointment of the new board of directors.

It does not capture the prominence of the applicants according to which in the present case there is a lack of willingness on the part of the competent bodies of the Budget …., In order to conclude a binding agreement to …. and / or …: either because here there is a concealed parasocial agreement, aimed at avoiding legal obligations, so that the fact that there is no formal manifestation of the will of the corporate bodies is irrelevant every aspect, also of detail, of the agreement; and because the contested decree promptly acknowledged the documentation, “confidential and confidential”, distributed on the occasion of the Board of Directors of the Finanziaria …. convened to deliberate the purchase (then carried out in the following days) of the shares, documentation that clearly indicates the purposes of the operation.

Nor does it point out the failure to identify which reciprocal counterparties and therefore the advantage envisaged in favor of …: a position that – as the CONSOB’s countercurrent’s defense correctly observes – the shareholders’ agreement in question presents an associative structure, in which the agreement of the paciscenti is addressed, not to an exchange purpose, but to the realization of a common purpose, consisting in the acquisition of control of the company and in the exercise, on the same, of a dominant influence, through the appointment of the new board of administration.

7. – The appeal is rejected.

8. The groundlessness of the appeal makes it possible to examine the question – raised during the discussion by the public prosecutor, to which he replied with written observations of the applicants’ defense – concerning the need to renew the notification of the appeal against … . and of … .. (notification initiated on June 8, 2013, by means of the postal service with the recommended package, without however being deposited the postcard of receipt), and this even more so than in the present judgment discusses exclusively the opposition to the provision sanctions concerning La … …, il …. and the ……

Source Supreme Court of Cassation