Weekly newsletter - year XVIII - No. 9 - 27 February 2012
News of the week:
N.B. measures adopted by Consob are published in the Bollettino and, where envisaged, also in the Gazzetta Ufficiale. This newsletter summarises the more important or general measures and their disclosure here is therefore merely to update readers on Commission activities.
- NEWS OF THE WEEK -
COMMUNICATIONS FOR INVESTOR PROTECTION
The Financial Services Authority (FSA), the British supervisory authority, reports that the companies:
- Goldman and Lyle Consulting Group (www.goldmanandlyleconsulting.com), with declared headquarters in Canada;
- Prime Solutions Inc, with declared headquarters in New York;
- Harvard Alliance (www.hardvardalliance.eu), with declared headquarters in Zurich;
- Metcap Securities (www.metsecu.us), with declared headquarters in New York;
- Elliot And Laurence Consultancy Group (www.elliotlaurenceconsult.com), with declared headquarters in Chicago;
- Frandistrans Group (www.frandistrans-group.co.uk), with declared headquarters in London, Paris and Madrid;
- Whitestone Financial Planning/WS Financial Planning (www.wsfinancialplanning.com), with declared headquarters in London and Vienna, which has no connection with the authorised company Whitestone Financial (FSA authorisation no. 220557), no longer operative,
are offering investment services without the required authorisation.
Prime Solutions has already been reported by the Swedish supervisory authority (see "Consob Informs" No. 51/2010).
* * *
The Financial Services and Markets Authority (FSMA), the Belgian supervisory authority, has declared that the companies Universal Liberty Express Bank with declared headquarters in Brussels, Lakepointe Capital Advisors, with declared headquarters in Liverpool, Browell limited, with declared headquarters in Hong Kong and Irs Clearing Consultancy, with declared headquarters in the Philippines, are offering investment services without the required authorisation.
Lakepointe Capital Advisors has already been reported by the Norwegian supervisory authority (see "Consob Informs" No. 40/2011).
* * *
The Danish Financial Authority has reported that HadleyRichards (www.hadleyrichards.com), with declared headquarters in Tokyo, is offering investment services without the required authorisation.
* * *
The Financial Market Authority (FMA), the Austrian supervisory authority, has reported that Grand Financial Management (www.grandfinancialmgmt.com), with declared headquarters in New York, is offering investment services without the required authorisation.
* * *
Finanstilsynet, the Norwegian supervisory authority, reports that the company Paramount Financial Group (http:/paramountfg.com), with declared headquarters in Vienna, is offering investment services without the required authorisation.
* * *
The Comision Nacional del Mercado De Valores (CNMV), the Spanish supervisory authority, reports that the company Financial Investment Group Spain sl,with declared headquarters in Madrid, is offering investment services without the required authorisation.
The authority has also reported that the following are in business with Financial Investment Group Spain: Dunia Vela Pinzoni, Grupo Financiero Orion sl, Ingestra Capital sl, S-Trade Inversion and Javier Acostallera and that the companies Grupo Financiero Orion sl, Ingestra Capital sl and S-Trade Inversion are not authorised to offer investment services in Spain.
SHORT SALES: RESTRICTIONS LIFTED ON NET SHORT POSITIONS ON FINANCIAL SECURITIES
On 24 February 2012, the restriction on short sales that had been adopted on 12 August 2011 and subsequently extended, was finally lifted. This provision entailed the prohibition from taking or increasing short positions on shares in the financial segment, including intraday. Short positions represent bear positions and are calculated as the difference between sales and purchase positions, concerning all financial instruments traded, including derivatives and index-linked.
Consob decided not to further extend the prohibition to assume or increase short positions on shares in the financial segment. This decision is in line with that already decided by other European authorities which, in the past, had taken similar steps and takes into consideration current market conditions.
The other measures adopted at the time in relation to shares listed on Italian regulated markets remain in any case in force for an unspecified period of time, introducing into the Italian order - ahead of forecasts - some of the restrictive measures contained in the European Community Regulation on short sales and some aspect of credit default swaps that will come into force on 1 November. These measures consist of:
- the disclosure obligation to Consob of significant short positions (above 0.2% in the share capital; resolution no. 17862 of 10 July 2011);
- the prohibition of making "nude" short sales, i.e. those not backed by the availability of the securities at the time of order, regardless of the place of trading (Resolution no. 17993 of 11 November 2011).
It is also noted that the European Community Regulation envisages the possibility, if certain conditions are met, of taking emergency measures, including the prohibition to assume or increase short positions on shares of the financial segment. This prohibition can in any case be reintroduced if market conditions so require and, once up and running, under the scope of the measures envisaged by European Community Regulation.
Consob will continue to systematically monitor the regular satisfaction of obligations to deliver shares during settlement.
ANSWER TO QUESTION ON THE CALCULATION OF THE PRICE OF THE MANDATORY BID OVER EDISON SHARES
Consob has answered the request for an opinion with regards to the calculation of the price for the compulsory take-over bid promoted by Edf (Electricité de France sa) over all ordinary shares of Edison spa.
The request asked Consob to confirm that the price of 0.84 euro per share was correct, "representing the highest price paid by Edf for the purchase of Edison shares during the 12 months prior to the significant purchase in terms of the take-over bid".
Given the particularly complex nature of the operation and the elements of uncertainty on the valuation of its various components, the Commission has considered that the ascertainment carried out thus far has not enabled it to reach any conclusions on the possibility that other operations connected with the transfer of ownership of Edison shares (sale of 50% of Edipower spa by Edison to Delmi and gas supply agreements) may include an additional remuneration component with respect to the price indicated; this additional remuneration, if proven, may affect the determination of the take-over bid price. More specifically, a different price agreed may emerge in accordance with art. 106, section 3, letter d), number 1) of the Consolidated Law on Finance and art. 47-septies of the Issuers' Regulations as well as collusive profiles in accordance with art. 106, section 3, letter d), number 2) of the Consolidated Law on Finance and art. 47-octies of the Issuers' Regulations.
Consequently, the ascertainment carried out thus far does not enable any conclusions to be drawn on the situation whereby the price of the take-over bid indicated by Edf as 0.84 euro is the highest paid by the bidder in the 12 months of reference, in accordance with art. 106, section 2 of the Consolidated Law on Finance.
The full text of the communication is available from www.consob.it.
VOLUNTARY BID OVER TIER 1 INSTRUMENTS OF THE UBI BANCA GROUP
By resolution no. 18111 of 22 February 2012, Consob has approved the document relating to the voluntary take-over bid promoted, in accordance with arts. 102 et seq. of the Consolidated Law on Finance over the entire amount of Tier 1 instruments in circulation of the group Unione di Banche Italiane scpa (Ubi).
On 07 December 2011, Unione di Banche Italiane, a cooperative joint-stock company listed on the MTA, launched an operation to repurchase the entire nominal value in issue (as of that date, equal to 453,460,000 euro) of three innovative capital instruments, by means of the promotion: i) of qualified Italian and foreign investors (closed on 16 February 2012), as defined by art. 34-ter, letter b) of the Issuers' Regulations; and ii) of a domestic take-over bid intended for Italian retail investors, the latter the subject of the document approved by Consob. Both offers, promoted at the same economic conditions and in compliance with the principle of equal treatment of the respective beneficiaries, come under the scope of the measures that the Ubi group has decided to take to cope with the need to strengthen equity, highlighted by the European Banking Authority (EBA).
The operation will, in fact, enable the bidder to realise a capital gain represented by the difference between the face value of the securities and the corresponding offer, thereby strengthening the component of the core tier 1 capital.
The take-over bid promoted in Italy concerns the entire amount in issue (equal to 354,631,000 euro) of the three innovative capital instruments series (preference shares), previously subject to said international offer, issued by some foreign subsidiaries of the bidder through an equal number of trusts with headquarters in the state of Delaware (USA):
1) step –up non voting non cumulative trust preferred securities, isin XS0108805564, issued by Banca Lombarda Preferred Securities Trust on 10 March 2000 for an amount of 155,000,000 euro (of which 95,519,000 is in issue) with a unit par value of 1000 euro, listed on the London stock exchange;
2) trust preferred securities isin XS0123998394, issued by Banca Popolare di Bergamo Capital Trust on 15 February 2001 for an amount of 300,000,000 euro (of which 186,470,000 is in issue) with a unit par value of 1000 euro, listed on the Luxembourg stock exchange;
3) non cumulative guaranteed trust preferred securities isin XS0131512450, issued by Banca Popolare Commercio e Industria Capital Trust on 27 June 2001 for an amount of 115,000,000 euro (of which 72,642,000 is in issue) with a unit par value of 1000 euro, listed on the Luxembourg stock exchange. All three securities were offered during the issue on the basis of the circular offering available on the bidder's website. In 2009, the securities were also subject, jointly with other subordinate liabilities, to an exchange tender offer promoted again by Ubi in relation to which a bid document was published upon authorisation by Consob (see "Consob Informs" no. 25/2009). The securities acquired during this offer have remained in the Ubi portfolio and are not concerned by this offer which therefore concerns the entire nominal value of the securities currently in issue, excluding those already held by Ubi, also as an outcome of said international offer.
The price for each security conferred, regardless of the series to which it belongs, is 800 euro, less than the nominal value of the securities and greater than the market values recorded by the securities during the three months prior to the offer promotion. The subscription period will be from 24 February 2012 to 12 March 2012 inclusive, unless extended.
The securities acquired by Ubi following the offer will be held in the bidder's portfolio, whilst no longer being used for trading.
DETERMINATION OF COMMITMENT TO BUY PRICE OF ORDINARY SHARES IN THE MINERALI MAFFEI GROUP
By resolution no. 18112 of 22 February 2012, Consob set a price of 4 euro per share as the commitment to buy price, pursuant to art. 108, section 2 of the Consolidated Law on Finance, for ordinary shares in Gruppo Minerali Maffei spa. by Iniziative Minerarie srl and Pavim srl.
The commitment to buy has arisen following the voluntary, totalitarian take-over bid promoted by the bidders in the period 21 November - 16 December 2011 (see "Consob Informs" no. 45/2011).
The price established by the Commission, equal to that of the voluntary offer, has been determined in accordance with art. 50 of the Issuers' Regulations and will be recognised by the bidders for the 594,945 ordinary shares in Gruppo Minerali Maffei still in issue, equal to 9.915% of the issuer's share capital.
PUBLIC SUBSCRIPTION OFFERING: FUTURE BANCA DI CATEGORIA DEI DOTTORI COMMERCIALISTI ED ESPERTI CONTABILI
Approval has been given for the prospectus relating to the public subscription offer of ordinary shares in the future Banca di Categoria dei dottori commercialisti ed esperti contabili spa (BancaEspertA).
The offer, which aims to constitute the bank by public subscription, in accordance with arts. 2333 et seq. of the Italian Civil Code. BancaEspertA, destined to come under the category of widely distributed securities to a significant extent, shall be constituted with a share capital equal to a minimum of 25.1 million euro and a maximum of 30 million euro, divided up into category "A" and "B" shares, both with the same administrative and equity rights. Category "A" shares can be subscribed exclusively by members of the roll of chartered accountants and expert book-keepers and by related parties, whilst category "B" shares can be held by any party and the issue of these shares cannot cumulatively exceed 40% of the entire share capital.
The number of shares offered for subscription - with a unit value coinciding with the strike price of 500 euro - is a minimum of 50,200 and a maximum of 60,000 shares, for a total face value of between 25,100,000 and 30,000,000 euro.
The minimum subscription share, regardless of share category, is 5 shares, for an equivalent value of 2,500.00 euro. The maximum share for each subscriber is equal to 0.5% of the entire share capital for natural persons and 5% of the entire share capital for other parties subscribing to the offer.
The bank stands out for the following distinctive traits: the articles of association establish that the control of the capital shall be held by category A shareholders, with classification as chartered accountant or expert book-keeper, in order to ensure the qualified presence of representatives of the category both in the meeting (at least 60% of the share capital shall consist of category A shares) and in the board of directors (two thirds of its members will be shareholders meeting the requirements to be holders of category A shares); the specific structure of the envisaged majority shareholders is preliminary to focus activities on the provision of services in favour of parties operating within professional studios; operations without the use of a network of branches (replaced by electronic connections with target customers) and organised using innovative methods, i.e. able to make the economic balance compatible with the need to have to prepare different organisational models to offer banking services and corporate finance services.
The offering will last for up to 12 months from publication of the prospectus, unless extended for up to a maximum of a further 12 months, by publication of a new prospectus and after authorisation by Consob.
The subscription period may end earlier if subscriptions of at least 25.1 million euro are collected. At least 5 days’ public notice will be given of any early closure or extensions.
The offer is not guaranteed by any natural or legal person.
In the "Risk Factors" section, the prospectus indicates elements of risk for investors with regard to the issuer, its related business sector and the securities offered (which will not be traded on any regulated market). It is also stated, in a specific notice at the beginning, that the amounts relating to the shares subscribed will be paid up only later when the offer has been successfully completed and exclusively by bank transfer to a tied current account held by the organising committee. In the event of failure to obtain authorisation from the Bank of Italy or of failure to incorporate, all amounts paid will be immediately returned to the subscribers and the incorporation expenses will be to the exclusive charge of the organisers, under the terms of Art. 2338 of the Civil Code.
DISCLOSURE IN ACCORDANCE WITH ART. 114, SECTION 5 OF THE CONSOLIDATED LAW ON FINANCE
On 22 February 2012, Consob made a disclosure in accordance with art. 114, section 5 of Italian Legislative Decree no. 58/98, following breach by Salvatore Ligresti of the request, made by Consob on 16 December 2011, to disclose the following information to the market:
- the number of Premafin shares transferred by Salvatore Ligresti to five foreign companies held by The Monarch Asset Protection and Asset Management Trust ("Mapam") and the transfer date;
- with reference to the equity of Mapam:
- if the five companies above were part of the equity of Mapam at the time of the transfer of the Premafin shares or if they only joined it subsequent to the transfer;
- the total number of Premafin shares held by Mapam as of the date of its establishment and on 26 May 2003;
- an indication if Salvatore Ligresti was Protector and sole beneficiary of said Trust from 20 February 1993 (date on which it was established) to 26 May 2003, the date on which it was transformed from Fixed Beneficiary Trust to Fully Discretionary Trust.
In this regard, the Commission has disclosed the elements resulting from the declarations made and the documents acquired on file, in relation to the information required of Salvatore Ligresti and all other elements available to it and useful to informing the market with regards to the circumstances concerned by the request:
- From 20 February 1993 to 26 May 2003, Salvatore Ligresti was the Sole Beneficiary of Mapam (Anglo-Saxon model trust), which held, through some foreign law companies, a percentage of Premafin shares equal to approximately 8.6% in the period 1993-2003;
- ownership of the Premafin shares held by Mapam could previously be traced to Salvatore Ligresti, who, from 31 March to 31 May 1993 had notified that he had reduced his participation in the capital of Premafin from 74.52% to 50.01%, by selling on the market;
- from 2003 to end 2005, the Premafin shares held indirectly by Mapam were transferred, first to The Silver Spring Trust ("SST") and then to The Heritage Trust ("Heritage"), which today holds 12.149% of the capital of Premafin, having in the meantime acquired other foreign law companies holding Premafin shares. As of the date of the transfer from SST to Heritage, the co-trustees of this latter Trust were Giancarlo de Filippo and Asset Management Corporate Services Inc.;
- Mapam was also, through its co-trustees Asset Management Corporate Services Inc. e Strategic Management Corporate Services Inc., Settler of The Ever Green Security Trust, which at least since July 2004, indirectly held 14.293% of the share capital of Premafin and which, as of today, holds 7.845%.
ESTABLISHED IN CONSOB BOARD OF AUDITORS OF THE ACCOUNTS
On 24 February 2012, the Board of auditors of the accounts was established in Consob, instituted in accordance with art. 2 of Resolution no. 17914 of 1 September 2011.
The Board consists of the chairman Maurizio Meloni, President of chambers at the Court of Auditors and members Biagio Mazzotta, Inspector General, Head of Balance Sheet at the Department of State General Accounting and Angelo Provasoli, full lecturer of methodologies and quantitative business determinations and professor on a senior contract at the Luigi Bocconi University.
The Board of auditors has been entrusted with auditing the administrative-accounting compliance within the institute; in particular:
- it checks financial management operations, carrying out regular cash and balance sheet checks and making observations;
- it issues an opinion on the draft budget and final financial statements, with specific regard to the coincidence of the results stated on the final statements with the accounts and the regularity of management procedures and all other documents relating to the economic-financial management of the institute;
- on request, it provides opinions on matters for which it is competent;
- it monitors compliance with provisions of laws and regulations on accounting matters;
- it carries out all other connected or functional activities required to fulfil the above duties.
The members of the board of auditors shall remain in office for three years and can be confirmed once.
- Commission decisions -
taken or made public during the week
(the documents with a link or underlined in the printed edition are immediately available in the respective sections of the website www.consob.it; the other measures will be available in the next few days)
- An opinion has been requested with regards to the calculation of the price for the compulsory take-over bid promoted by Edf (Electricité de France sa) over all ordinary shares of Edison spa (Communication no. 12014102 of 24 February 2012).
- Approval has been given for the document relating to the voluntary take-over bid promoted, in accordance with arts. 102 et seq. of the Consolidated Law on Finance over the entire amount of Tier 1 instruments in circulation of the group Unione di Banche Italiane scpa (Ubi) (Resolution no. 18111 of 22 February 2012).
- The price has been determined for compliance with the commitment to buy in accordance with art. 108, section 2 of the Consolidated Law on Finance, over the ordinary shares issued by Gruppo Minerali Maffei spa by Iniziative Minerarie srland Pavim srl (Resolution no. 18112 of 22 February 2012).
- Approval has been given for the prospectus relating to the public subscription offer of ordinary shares in the future Banca di Categoria dei dottori commercialisti ed esperti contabili spa (Decision of 22 February 2012).
- Authorisation has been given for publication of the base prospectus concerning the public offering programme of fixed rate, variable rate, step up/step down, variable rate with floor and/or cap and zero coupon bonds issued by Banca di Credito Cooperativo Picena sc (Decision of 22 February 2012).
- Authorisation has been given for the publication of the supplement to the base prospectus in relation to the public offering of zero coupon, fixed rate, step-up fixed rate, step-down fixed rate, floating rate with potential floor and/or cap, blended rate with potential floor and/or cap, with coupons linked to the percentage change in consumer price index with potential floor and/or cap issued by Intesa Sanpaolo spa (decision of 22 February 2012).
- Authorisation for publication of the supplement to the base prospectus concerning the public offering programme of fixed rate, floating rate, step up, step down and zero coupon bonds issued by Cassa di Risparmio di Cento spa (decision of 22 February 2012).
- Authorisation has been given for publication of the supplement to the registration document and of base prospectuses concerning the public offering programmes of fixed rate, step up fixed rate and variable rate bonds issued by Banco Desio Lazio SpA (Decision of 22 February 2012).
- Authorisation has been given for publication of the supplements to the registration document and base prospectuses concerning the public offering programmes of fixed rate, floating rate, step up / step down, zero coupon, with plain vanilla call or put European, Asian or digital options and fixed rate or floating rate with payment of a percentage of par value placed in favour of non-profit subjects pursuing purposes of social utility issued by Banca Popolare di Vicenza scpa (Decision of 22 February 2012).
- Authorisation has been given for publication of the supplements to the securities note and summaries note concerning the public offering and/or admission to trading of bonds, certificates and covered warrants issued by Banca Imi spa (Decision of 22 February 2012).
- Authorisation has been given for publication of the supplement to the registration document of Banca Imi spa (Decision of 22 February 2012).
Regulations, guidelines and communications
- Diffusion of a Consob release in accordance with art. 114, section 5 of Italian Legislative Decree no. 58/98 (Decision of 22 February 2012).
Registers and lists
- Registration has been ordered for MoneyFarm Sim spa, with headquarters in Milan, in the roll pursuant to art. 20, section 1, of Legislative Decree 58 of 24 February 1998. The Company is authorised to provide investment services pursuant to art. 1, section 5 of Italian Legislative Decree no. 58 of 24 February 1998, letter e) receipt and transmission of orders and f) investment consulting. Authorisation to provide said services is issued with the following operative limits: "without holding, even on a temporary basis, cash and cash equivalents or financial instruments of customers and with no assumption of risk by the company (resolution no. 18125 of 22 February 2012).
- Authorisation has been revoked for Horatius Sim spa, with headquarters in Milan, to provide investment services, with operative limits to "portfolio management" and "investment consulting" pursuant to art. 1, section 5, respectively letters d) and f) of Italian Legislative Decree no. 58 of 24 February 1998, with its consequent cancellation from the investment firm register pursuant to art. 20, section 1 of the same Italian Legislative Decree (Resolution no. 18126 of 22 February 2012).
- Pasquale Trezza, resident in the province of Salerno, has been removed from the register of financial promoters (Resolution No. 17789 of 18 May 2011).
- David Cappellini, resident in the Province of Pisa, has been removed from the register of financial promoters (Resolution No. 18088 of 26 January 2012).
- Bruna Giri, resident in the Province of Rome, has been removed from the register of financial promoters (Resolution No. 18067 of 11 January 2012).
- Suspended for one year as a precautionary measure, from the business of financial salesman. Giovanni Lizza, resident in Benevento (Resolution no. 18058 of 28 December 2011).
- By way of sanction, Cristina Fabbri, resident in Ferrara, has been suspended for four months from carrying out the business of financial promoter (Resolution no. 18064 of 11 January 2012).
CONSOB INFORMS (Rome Tribunal Registration no. 575 of 23/12/94) – Chief Editor: Alberto Aghemo - Editorial board: Antonella Nibaldi (coordinator), Laura Ferri, Claudia Amadio, Annalisa Mancini - Text and layout: Alfredo Gloria - Address: CONSOB Via G. B. Martini, 3 - 00198 Rome - telephone: (06) 84771 - fax: (06) 8417707. Documents or reports can be submitted via the interactive section of the web site www.consob.it, where CONSOB INFORMA can also be consulted via the "newsletter" link.