The awaited response from Consob was published in the afternoon, complete with reasons for Unipol's request for exemption from the takeover bid for the four-way merger with Premafin, Fonsai and Milano Assicurazioni.
NO TO INDEMNITY AND WITHDRAWAL FOR EQUAL TREATMENT TO ALL SHAREHOLDERS, MONEY ONLY FOR SAVING
And she sheds light on one of the stakes that most aroused interest when the verdict came out a few days ago: the conditions placed on the indemnity granted to the directors of Premafin, Fonsai and Milano Assicurazioni and the withdrawal in relation to the Premafin takeover bid. These start from the assumption, explains Consob, that the exemption from the mandatory takeover bid "is not applicable" in a certified crisis situation "every time there are benefits of an economic nature granted by the new controlling entity to the old controlling shareholders, additional compared to those deriving from the simple rescue of the company in crisis following the capital increase”. Just as is the indemnity which in fact entails an economic benefit for the Ligresti. As regards the right of withdrawal, which in fact takes the form of a severance pay, Consob recalls that the law attributes it to "shareholders who did not participate in the resolutions" and that "it seems equally questionable that the right in question can be exercised by individuals which have in any case contributed in a decisive way to the realization of the operation in its entirety”. The Commission also recalls its own Communication of 30 September in which it clarified that "the funds invested by the shareholder who acquires control are aimed at increasing the assets of the company and not that of the individual shareholders who eventually sell their shareholding or their option rights ” and that ”full equal treatment is guaranteed for all shareholders, who equally suffer the dilutive effect” linked to the subscription of the capital increase by the new shareholder.
FOUR FUSION IS PART OF UNIQUE RESCUE PROJECT
BUT THE FINAL DECISION DEPENDS ON THE ISVAP JUDGMENT
Consob explains that the four-party merger between Unipol Assicurazioni, Milano Assicurazioni, Premafin and Fonsai should not lead to a takeover bid on the Ligresti company because it is part of a single rescue project. But the final decision, Consob specifies, will be subject to confirmation by Isvap that the incorporation of the three companies into Fonsai is an "integral part" of a single plan "to strengthen the capital" of the Ligresti company. This is what emerges from Consob's response to Unipol's questions on the takeover bid. In detail: for Consob there are "relevant indicators which suggest that in the present case there is a substantial unity of the capital strengthening operation, replaced by the capital increase and the subsequent merger". In a nutshell, for the Commission the four-party merger must be considered as an integral part of the Fonsai rescue project, referring to the "intrinsic unity of the operation, which can be deduced from the clauses of the agreement, from the guidelines of the industrial strategic plan examined by Isvap as well as from the initial assessments expressed by the latter”. Therefore, the venue in which Isvap will definitively evaluate whether the merger is suitable for restoring Fonsai's solvency margin is, however, "that of the authorization of the merger operation".
A FIRST POSITIVE OPINION FROM ISVAP
As part of the collaboration started with Consob, "it was able to express an initial positive assessment of the transaction considered as a whole": the transaction, according to what is proposed, will allow the companies involved to meet the solvency requirements for the period 2012-2015 on the basis of current legislation. "In addition to determining a discontinuity in the management of the companies due to the renewal of the administrative bodies - notes Isvap - the Unipol plan allows, on the basis of the assumptions adopted, cost synergies and a better composition of the portfolio".
THE PREMAFIN NODE EMERGES
If the four-way operation is part of a single rescue project, Premafin's position is not, however, so obvious. In fact, Consob believes, on the basis of the data available, that “the incorporation of Premafin into Fonsai would make a negative contribution to the solvency margin of the new aggregate. Hence it is possible that the inclusion of Premafin is not considered a "capital strengthening of Fonsai responding to Isvap's request, but at the most, an operation to optimize the group structure, a legitimate purpose but not in line with the conditions of exemption from the obligation of a consolidation takeover bid”.
This is why, once the swaps have been determined (yesterday evening Premafin agreed to the swaps defined by Fonsai and now the ball passes to Unipol), it will be necessary to understand whether the increase in Unipol Gruppo Finanziario's stake in the post-merger entity due the incorporation of Premafin determines that the relevant threshold of 5% is exceeded. In this case, Unipol will have to promote the consolidation tender offer.
AFTER THE LATE DELIVERY OF THE SIDE LETTERS, CONSOB DOTS THE I'S
Consob is also keen to clarify that "The following considerations are formulated on the basis of what is represented in the question and of the information framework currently available". A formula of practice, of course, but which in the current circumstances takes on a different flavor. In fact, the Commission recalls that the two side letters between Unipol and Premafin (which defined the indemnity clause and the indemnity for early termination of office) were signed together with the agreement but sent to the Commission "only subsequently".
