Financial, mandatory take-over by consolidation and increased vote, Consob
Regulation of the mandatory tender offer for consolidation and of the increased vote pursuant to articles 106, paragraph 3, lett. b) and 127-quinquies, of Legislative Decree no. 58/1998 and 46, of Consob Regulation n. 11971/1999 (Issuers Regulation)
Consob clearing up
Due to the accrual of the increase in the voting rights of the shares of a listed company by two partners acting in concert, the shareholding held by them had exceeded the takeover threshold (5%).
In this perspective, in order to avoid the consequent obligation to opt out, these shareholders had communicated to the market the intention to avail themselves of the exemption for “transactions or overruns of a temporary nature”, pursuant to the combined provisions of articles 106, paragraph 5 , letter d), and 49, paragraph 1, letter e), of the Issuers Regulation, undertaking to reduce voting rights within 12 months from the date of the increase, by transferring shares to unrelated shares and / or waiving separately of the increase accrued in excess of the 5% threshold, as well as not exercising the voting rights in excess of the aforementioned threshold, always in the same 12-month period.
In this regard, in view of the expiration of the aforementioned 12 months, in order to comply with the aforementioned commitments, the shareholders asked the Commission:
if they are in any case required to sell securities (or renouncement of the increase) in excess of the 5% threshold in the 12 months and it is not possible to consider compliance with the aforementioned provision with the simple abstention from voting for rights in excess for the period of 12 months without any transfer or renouncement, since the shareholders themselves, after twelve months from the increase, increase their participation again;
if the Articles of Association or the regulation governing the increase in the voting rights of a listed company can trigger the effects of the increase, also for the purposes of the thresholds relating to the obligation to make a public purchase offer, from the moment in which the subject entitled to the increase it requires the attribution, provided that said date is later than the date on which the right to obtain the majority accrues.
With Communication No. 0214548/19 of April 18, 2019, Consob clarified that:
with reference to the procedures for fulfilling the commitments assumed in order to avail of the exemption for “transactions or temporary overruns”, it is necessary to transfer shares (or waive the increase) in excess of the threshold of the consolidation offer (5 %), within twelve months of the maturation of the increase in voting rights, which led to the same threshold being exceeded, and the abstention from voting for excess rights for the same twelve-month period;
with reference to the effect of the effects of the increase in voting rights, in the event of holding for a continuous minimum period of 24 months the shares for which the voting rights have been requested by registering them in the special list, and failure to waiver of the increase by the shareholder, it is incompatible with the regulatory framework governing the institution of the increased vote the possibility that the shareholder, depending on the moment in which he expressly requests the attribution of the increased vote, determines in such the date on which the increase in voting rights also becomes relevant for the purposes of calculating the opa thresholds.
May 20, 2019
Source Consob
