In our experience, a bank guarantee is usually required. To that end, a specific clause is therefore included in the share purchase agreement which provides that, at the time of performance of the contract, the seller must, on first request, provide a bank guarantee independent of a leading credit institution for the benefit of the buyer. In addition, in the event of a transfer of an undertaking with more than 15 employees, the seller and the buyer must be informed in advance in writing of the works councils of the production units concerned and of the external trade unions which have concluded the national collective agreement applied by the undertakings concerned. In the absence of works councils, the opinion is sent only to external trade unions belonging to the main national trade unions. Specifically, the MAC clause of a SPA generally allows the buyer to terminate the contract if certain events or categories of events agreed upon by the parties occur between signature and conclusion. As a general rule, these provisions refer to extraordinary and unforeseeable events which are beyond the control of the parties and which, in their joint assessment, may significantly alter the contractual balance and/or no longer render the completion of the transaction practical or, in any event, particularly or excessively binding on the potential buyer in accordance with the conditions already agreed between the parties. In market practice, these clauses can be formulated in more or less detail, with lists of restrictive or simply exemplary events, depending on the outcome of the negotiations between the parties and/or the sector of activity of the target company. Indeed, in a SPA, the Seller and the Buyer have conflicting interests in the elaboration of the MAC clause: the Seller will prefer to make it as restrictive as possible, with an exhaustive and mandatory list of events and excluding certain events beyond the control of the Seller and/ or the Target Company (such as.B.B. slowdowns and other negative macroeconomic events at the global or national level and/or related to a particular industry, natural disasters, epidemics or regulatory changes) to reduce their scope; The buyer, on the other hand, will generally want to formulate the clause more fully through examples and general clauses in order to have more possibilities to invoke its application. As mentioned in question 24, the parties are generally not allowed to terminate the transaction after the signature, unless it is: As already mentioned, the parties are generally not allowed to terminate the transaction after the signature, unless: As already mentioned, Italian law requires: That in the context of a business transfer or a share transaction, the working and employment conditions of employees are preserved. However, it does not require the transfer of a particular benefit plan unless that plan can continue to be identical to the one that preceded the transfer (p.B a premium plan based on the seller`s economic objectives, or a performance plan specific to the seller`s group), provided that this plan is replaced by opportunities that are no less favourable. In Italy, irrevocable bonds of the main target shareholders are allowed and are usually sought by the tenderer to increase its chances of success, although there is a risk that this constitutes a «joint action».

They are considered an instrument of protection of the company and must be disclosed in the offer document. However, if a competing offer is made, existing shareholders who have already offered their shares to the first potential bidder may cancel their acceptance and offer them to the competing bidder. However, shareholders` obligations take the form of shareholder agreements; therefore, shareholders can revoke it if the offer is «entirely in shares» or if the offeror wishes to purchase at least 60% of the shares. With regard to transaction documents, in the case of an asset transaction, the parties must conclude a purchase contract – which can be concluded by a public deed (i.e. a deed to be signed before a notary) – which exclusively governs the transfer of the assets or the company. For some transactions, the purchase execution date and closing date may not match for some reason (for example. B the need to close the financial year). In this case, the purchase contract contains the most important documents to be delivered or updated on the closing date, as well as the measures allowed during the intermediate period between execution and conclusion, including those that require the consent of the potential buyer. In general, consent is generally not required to make a transfer of shares, assets or transactions. However, in certain special cases, consent may be required, such as, among others, in the case of the transfer of shares, the consent of the board of directors of a company in cases where the shares are to be transferred to a competitor, provided that such consent is required by law by the articles of association of the company; and the transfer of assets may require the consent of certain authorities where assets are subject to specific restrictions for reasons of public interest.

In the case of listed companies, Article 120 of the Consolidated Finance Law, as implemented by the Commissione Nazionale per le Società e la Borsa (CONSOB), imposes a reporting obligation on all persons who, directly or through persons, trustees or subsidiaries, hold voting interests that exceed the threshold of 3% (5% if the issuer is a small or medium-sized enterprise). The company and CONSOB must be informed. These provisions give consob a comprehensive overview of the shareholding structures of listed companies. Article 120 was recently amended by Legislative Decree 148 of 16 October 2017 (converted by Law No. 172 of 4 October 2017). December 2017), which stipulates that when acquiring a stake in a listed issuer that meets or exceeds the thresholds of 10%, 20% or 25% of its capital, the notifier must disclose the objectives it will pursue within the following six months. Of course, the decision to make an acquisition in Italy through a share transaction or an asset transaction depends on other factors in addition to the tax costs of the transaction. Here are some of them. Finally, contracts (with the exception of personal contracts) and claims related to a transferred transaction are automatically transferred to the buyer, unless otherwise agreed by the parties.

Specific notification obligations or obtaining waivers or express consents may be provided for in the contractual documents relating to agreements or claims that are part of the transferred business. In addition, in the event of a share transaction, the employee continues to participate in the same national collective or occupational pension fund, the transfer not entailing any modification of the collective agreement or the applicable employer. A structured transaction such as a share transaction would not entail a legal obligation to inform or consult works councils, external trade unions or employees in advance. However, obligations in this regard may arise from existing collective agreements at both national and company level. In addition, Legislative Decree No Directive 25/2007 transposing Directive 2002/14/EC (establishing a general framework for the information and consultation of employees in the European Union) lays down certain general information and consultation obligations, including for all company decisions which would entail substantial changes in the organisation of work for employers with more than 50 employees. In this context, information and consultation obligations may also apply to share transactions that may lead to significant changes in the organisation of work or contractual relations. In share transactions, the parties usually sign a share and purchase agreement, the purpose of which is the transfer of shares (or quotas in the case of a limited liability company) without the parties having to describe the assets of the target company. Our corporate mergers and acquisitions department has extensive experience in domestic and cross-border equity transactions, investment agreements and joint ventures and is at your disposal to help you identify risks and opportunities for your exceptional transactions arising from the COVID-19 outbreak and COVID-19 measures. In this article, we wish to analyse the potential impact of the COVID-19 outbreak on merger and acquisition transactions, in particular with regard to the applicability of «Significant Adverse Change» («MAC») clauses created in Anglo-Saxon jurisdictions, which in commercial practice are often provided for in share purchase agreements («PPS») where the closing of the transaction does not take place at the same time as the signing of the SPA. often due to the need to meet other requirements or conditions agreed upon by the parties.

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