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The new simplified procedure of corporate mergers and divestitures set forth in Legislative Decree no. 123/2012.

The new simplified procedure of corporate mergers and divestitures set forth in Legislative Decree no. 123/2012.

The Legislative Decree no. 123 dated June 22, 2012 (the “Decree”), implementing the European Directive 2009/109/EC dated September 16, 2009, introduced new measures designed to simplify the current reporting procedure and the documentation requirements in the case of mergers and divestitures.

The Decree, amending the existing discipline regarding mergers and divestitures set forth into Italian Civil Code, makes procedures easier and dispenses  with certain traditional requirements necessary in the past, among which is appropriate for a practitioner to behoove:

1. the Decree amended Article 2501-ter of the Italian Civil Code providing, as an alternative to the filing with the Register of Companies, the ability to publish the merger or divestiture project on the websites of the companies involved in the deal, with proper formalities in order to guarantee the security of the same website, the authenticity of the documents and the certainty of the date of publication;

2. the Decree amended Article 2501-quarter, paragraph 2, of the Italian Civil Code introduced the facility to disclose the financial position  in case of companies listed in the regulated markets by the six-month financial statement provided by the relevant special acts, provided that such six-month financial statement shall not be referred to a date that is earlier than six month from the date of filing or publication of the project. Note that in the past it was possible to replace the disclosure of the financial position only for the companies not listed in the regulated market and by financial statements of the last financial year, if this was closed not later than six months before the day of filing or publication on the website of the merger project;

3. moreover, the Decree added a third sub-paragraph to Article 2501-quarter, paragraph 2, of the Italian Civil Code, which provides that the disclosure of financial position is not required if the shareholders of each of the companies involved in the deal and the owners of  the financial instruments with voting rights, unanimously  dispense with it;

4. according to Article 2501-quinquies of the Italian Civil Code, as amended by the Decree, the administrative body is required to report to the shareholders and to the administrative body of the other companies involved in the deal, any significant changes to the assets and liabilities incurred between the date of filing or publication of the merger (or divestiture) and the date on which the shareholders will resolve upon such transaction.

It should be observed however, that in light of the first comments, some innovations set forth in the Decree actually do not have a simple application. In particular, as regards the possibility of publishing the merger or divestiture on the website of the companies involved in the deal, the Decree does not provide a clear explanation of the concrete modalities to assure guaranteed and certified security of the same website and the certainty of the date of publication.

For this purpose, it may be appropriate to publish in the trade register the website of the company and the date of the upload of the merger or divestiture in the company website. Moreover, it would be useful to authenticate the transaction and to provide the latter with the digital signature.

Marco Moretti
Giampiero Belfiore

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