The amendments made by Resolution no. 19520 of 24 February 2016 are indicated in bold type.
Regulation on “the collection of risk capital via on-line portals” (adopted by Consob with Resolution no. 18592 of 26 June 2013 and successively amended by resolution no. 19520 of 24 February 2016)
PART I – GENERAL PROVISIONS
Article 1 - Legislative sources
Article 2 - Definitions
Article 3 - Procedures for communication and transmission to Consob
PART II - REGISTER AND RULES FOR PORTAL MANAGERS
Title I – Establishment of the Register
Article 4 - Register
Article 5 - Register content
Article 6 - Public disclosure of the register
Title II – Registration
Article 7 - Registration authorisation procedure
Article 8 - Integrity requirements for the controlling shareholders
Article 9 - Integrity and professional requirements for the persons who perform managerial and supervisory functions
Article 10 - Effects of the loss of the integrity requirements
Article 11 - Suspension from the office as persons who perform managerial and supervisory functions
Article 11-bis Expiry of the authorisation
Article 12 - Cancellation from the register
Title III - Rules of conduct
Article 13- The portal manager's obligations
Article 14 - Information on the portal management
Article 15 - Information on investment in financial instruments via portals
Article 16 - Information on the offer
Article 17 - Obligations relative to the processing of investors' adhesion orders
Article 18 - Obligations in protection of investors connected to the operational risks
Article 19 - Confidentiality obligations
Article 20 - Document archiving
Article 21 - Notice to Consob
Title IV - Sanctions and precautionary provisions
Article 22 - Precautionary provisions
Article 23 - Sanctions
PART III - RULES ON OFFERS VIA PORTALS
Article 24 - Conditions relative to offers on the portal
Article 25 - Funding and right of revocation
Annex 1 - Instructions for the presentation of the application for entry on the managers 'register and for communication for annotation in the special "bidder"
Annex 2 - Report on the company's business and organisational structure
Annex 3 - Information on the offer
1. This regulation is adopted pursuant to articles 50-quinquies and 100-ter of Italian Legislative Decree n° 58 of 24 February 1998.
1. For the purposes of this Regulation:
a) «Consolidated Law»" shall mean Legislative Decree n° 58 of 24 February, 1998;
b) «decree» shall mean decree law n° 179 of 18 October 2012 converted, with amendments, by law n° 221 of 17 December 2012 introducing “Further urgent measures for the growth of the Country”;
1) innovative start-up companies, including start-ups with a social vocation, as defined by Article 25, paragraphs 2 and 4, of the decree and tourism start-ups pursuant to Article 11-bis of Decree Law no. 83 of 31 May 2014, converted with amendments by Law no. 106 of 29 July 2014;
2) innovative small and medium enterprises (“innovative SME”), as defined by Article 4, paragraph 1, of Decree-Law no. 3 of 24 January 2015, converted with amendments by Law no. 33 of 24 March 2015;
3) collective investment schemes (“UCITS”) which invest mainly in innovative start-ups and in innovative SME, as defined by Article 1, paragraph 2, letter e), of the Ministry of Economy and Finance Decree of 30 January 2014;
4) companies which invest mainly in innovative start-ups and SME, as defined by Article 1, paragraph 2, letter f), of the Ministry of Economy and Finance Decree of 30 January 2014 ;
d) «portal» shall mean the on-line platform with the exclusive purpose of facilitating the collection of risk capital on the part of the bidders ;
e) «manager» shall mean the subject which professionally practises the portal management service for the collection of risk capital for the bidders, entered on the specific register kept by the Consob ;
f) «control» shall mean the case in which an individual, a legal entity or several persons jointly, hold, directly or indirectly, also through shareholders' agreements, the majority of the votes which can be exercised at the ordinary shareholders'meeting, or with sufficient votes to exercise a dominating influence on the ordinary shareholders' meeting;
g) «offer» shall mean the offer to the public carried out exclusively via one or more portals for the collection of risk capital; the offers are of financial instruments issued by innovative start-ups for a total amount which is less than that determined by the Consob pursuant to article 34-ter, paragraph 1, letter c) of the Consob regulation on issuers, adopted by resolution
n° 11971 of 14 May 1999 as subsequently amended ;
h) «financial instruments»: the shares or units representing the share capital or the UCITS units which are offered to the public through the portals ;
i) «register» shall mean the register held by the Consob pursuant to article 50-quinquies of the Consolidated Law;
j) «professional investors»: the professional customers qualified as such by law or at their own request, identified in Annex 3,points I and II, of the Consob Regulation on intermediaries, adopted with resolution no. 16190 of 29 October 2007 and successive amendments, and the professional customers qualified as such by law or at their own request identified
by Articles 2 and 3 of Ministerial Decree no. 236 of 11 November 2011 issued by the Ministry of Economy and Finance .
(Procedures for communication and transmission to the Consob)
1. All the applications, communications, deeds, documents and all other information required by this regulation are transmitted by certified e-mail (PEC) to the address email@example.com.
REGISTER AND RULES FOR PORTAL MANAGERS
Establishment of the register
1. The register of the portal managers has been established pursuant to article 50-quinquies, paragraph 2, of the Consolidated Law.
2. A special section is annexed to the register, listing the investment companies and banks authorised to provide the relative investment services which must inform the Consob, before starting operations, that they manage a portal as contemplated by Appendix 1.
1. For each portal manager registered, the following information shall be provided:
a) the authorising resolution and the registration order number ;
b) company name;
c) Internet site address of the portal and the corresponding hypertext link;
d) the registered office and the head office;
e) the permanent seat in the Italian Republic for EU entities;
f) details of any sanctions and precautionary provisions adopted by the Consob.
2. The special section of the register provides:
a) company name;
b) Internet site address of the portal and the corresponding hypertext link;
c) details of any sanctions and precautionary provisions adopted by Consob.
(Public disclosure of the register)
1. The register is published in the "Registers and Lists" section of the electronic Consob Bulletin.
(Registration authorisation procedure)
1. The application for registration authorisation is drafted pursuant to the provisions set forth by Annex 1 and it must be accompanied by a report on the company's activity and the organisational structure, including an illustration of any outsourcing of essential operational functions to third parties, drafted pursuant to Annex 2 .
2. The Consob shall verify the regularity and the completeness of the application within seven working days of receipt and shall inform the applicant company of any missing documentation, which must be sent to Consob within thirty working days from receiving the communication, on penalty of inadmissibility .
3. During the investigation, the Consob may request further information with regard to:
a) the applicant company;
b) persons who perform managerial and supervisory functions for the applicant company;
c) persons holding the control of the applicant company;
c-bis) to any subject, also abroad .
In such a case, the deadlines established for the completion of investigations shall be suspended from the date of request for information until the date of receipt and for a period in any case of no more than thirty working days, on penalty of inadmissibility .
4. Any change to elements relevant for decision-making purposes that may arise during the inquiry, or relevant amendments made to the report contemplated by Annex 2, shall immediately be brought to the Consob’s attention. The applicant company shall submit the related documentation within seven working days of the event. The deadlines established for completion of
investigations shall be interrupted from the date of receipt of the statement of changes until the date of receipt by the Consob of the related documentation .
5. The Consob will resolve upon the application within sixty working days. The authorisation is denied if the applicant company does not have the requirements set forth by article 50-quinquies of the Consolidated Law and by articles 8 and 9, or when the assessment of the contents of the report contemplated by Annex 2 do not guarantee the applicant company's capacity to
correctly manage a portal .
(Integrity requirements for the controlling shareholders)
1. For the purpose of registration and to remain on the register, the controlling shareholders of the applicant company must declare, under their own responsibility and according to the terms and conditions indicated in Annex 1, that:
a) they have not been debarred, disqualified or sentenced to punishment involving debarment, even temporary, from holding public office, and that they have the capacity to exercise a directorship;
b) they have not been the subject of precautionary measures imposed by the judicial authority under legislative decree n° 159 of 6 September 2011, as subsequently amended, without prejudice to the effects of rehabilitation;
c) they have not been condemned in an unappealable judgement, without prejudice to the effects of rehabilitation, and sentenced to:
1) imprisonment for one of the offences provided for in the legislation on banking, financial, securities and insurance activities or in the legislation on securities markets and securities or payment instruments;
2) imprisonment for one of the offences contemplated by title XI of book V of the civil code and by Royal Decree n° 267 of 16 March 1942;
3) imprisonment for a term of not less than one year for a crime against the public administration, public faith, public heritage, public order or public economy or for a tax crime;
4) imprisonment for a term of not less than two years for any intentional crime;
d) that they have not been sentenced to one of the punishments referred to in letter c) with a judgement which applies the punishment at the request of the parties, unless the offence has been cancelled;
d-bis) of not having been sentenced in foreign states to penalties or other sanctions for cases such as those which would involve, under Italian law, the loss of the requisites of integrity .
1-bis. If no shareholder has control, paragraph 1 applies to the shareholders who hold stakes of at least twenty percent of the share capital .
2. If the control or the shareholder indicated under paragraph 1-bis are held by one or more corporate entities, the integrity requirements referred to in paragraph 1 must be held by the directors and the general manager or the persons holding equivalent offices, and by the natural persons who control such corporate entities .
(Integrity and professional requirements for the persons who perform managerial and supervisory functions)
1. For the purpose of registration and to remain on the register, persons who perform managerial and supervisory functions must meet the integrity requirements indicated by article 8, paragraph 1.
2. The subjects indicated under paragraph 1 are chosen according to professional standing and skill among people who have gained proven experience of at least two years in:
a) acting as directors, members of the supervisory body or senior managers of firms;
b) performing professional activities related to the credit, financial securities or insurance sector;
c) university teaching in legal or economic subjects;
d) administrative or managerial functions in public or private entities or government departments related to the credit, financial, securities or insurance sector or in public entities or government departments not related to such sectors provided the functions involve the management of economic-financial resources.
3. Persons who have gained proven work experience of at least two years in the industrial, information technology or technical-scientific, and highly innovative sectors, or teaching or researching in the same fields, can be members of the body which performs administrative functions, without having executive roles, and provided that the majority of the members meet the requirements of
4. The persons who perform managerial and supervisory functions for a portal manager entered in the register may not assume or exercise equivalent positions for other companies which carry out the same activity, unless such companies belong to the same group.
(Effects of the loss of the integrity requirements)
1. The controlling shareholders and the persons who perform managerial and supervisory functions of a portal manager shall immediately inform the relative management and supervisory bodies of the loss of the integrity requirements.
2. In the case of the loss of the integrity requirements indicated under paragraph 1, the authorisation of the portal manager concerned shall expire unless said requirements are restored within a maximum term of two months .
3. During the period contemplated under paragraph 2, the portal manager cannot publish new offers and those in progress shall be suspended as of the communication required pursuant to paragraph 1 and shall lapse on the expiry of the two month term, unless the prescribed requirements are restored.
(Suspension from the office as persons who perform managerial and supervisory functions)
1. The person who performs managerial and supervisory functions for a portal manager will be suspended if:
a) they are subjected to an appealable sentence for one of the offences provided by article 8, paragraph 1, letter c);
b) application is made at the request of the parties of one of the sanctions provided by article 8, paragraph 1, letter c), with an appealable sentence;
c) provisional application is made for one of the measures provided by articles 67 and 76, paragraph 8, of legislative decree n° 159 of 6 September 2011;
d) application is made for a personal precautionary measure.
2. The body performing management functions must declare the suspension by specific resolution within thirty days from having knowledge of the events contemplated under paragraph 1 and must include the revocation among the items on the agenda at the next shareholders' meeting if the reason for the suspension is one of those indicated in paragraph 1. In the cases provided by letters c)
and d) of paragraph 1, the suspension from the office shall apply in any case for the entire duration of the measures.
(Expiry of the authorisation)
1. The managers start the execution of the activity within the term of six months from the date of the relative authorisation, on penalty of expiry of the said authorisation.
2. The managers who have interrupted the execution of the activity will resume it within the term of six months, on penalty of expiry of the relative authorisation .
(Cancellation from the register)
1. The Consob shall cancel a portal manager from the register in the following cases:
a) portal manager's request;
b) loss of the requirements prescribed for registration;
c) failure to pay the supervisory contributions of the amount determined annually by the Consob;
d) adoption of a decision of disqualification pursuant to article 23, paragraph 1, letter b);
d-bis) by effect of the expiry of the authorisation .
2. Portal managers cancelled from the register pursuant to paragraph 1 may again be entered in the register:
a) in cases pursuant to paragraph 1, letters b) and c), the portal managers again meet the requirements referred to in articles 8 and 9, or they have paid any supervisory contribution due;
b) in cases pursuant to paragraph 1, letter d), three years have passed since the date of the notification of the decision of disqualification.
Rules of conduct
(The portal manager's obligations)
1. The portal manager shall work with diligence, fairness and transparency, avoiding any conflicts of interest which could arise in the management of the portal that may affect the interests of the investors and the issuers, and ensuring equal treatment of the beneficiaries of the offers who are in identical conditions.
2. The portal manager shall make available to the investors, in a detailed, correct and not misleading manner and without omissions, all the information regarding the offer that is provided by the bidder so that the investors can reasonably and completely understand the nature of the investment, the kind of financial instrument offered and the risks related to them , and can take
decisions on investment with full awareness .
3. The manager shall draw to the attention of the non-professional investors the fact that investments in high risk financial assets should be adequately proportionate to their financial resources. The manager shall not circulate news that is not consistent with the information published on the portal and shall refrain from expressing recommendations regarding the financial instruments of
the single offers which could influence the trend of adhesions to the same.
4. The portal manager must ensure that the information provided via the portal is updated, accessible for at least 12 months after the closure of the offers and made available to the interested parties upon request for a period of five years from the date of the end of the offer.
5. The portal manager must ensure non-professional investors the right to withdraw from the adhesion order, without charge, by communication addressed to the manager in person, within seven days subsequent to the order.
5-bis. The manager checks, for every order received of adhesion to the offers, that the customer has the level of experience and knowledge necessary to understand the essential features and the risks that the investment involves, on the basis of the information supplied pursuant to Article 15, paragraph 2, letter b). If the manager maintains that the instrument is not appropriate for the
customer, he warns the same of the situation, also by means of an electronic communications system .
5-ter. If the manager has not carried out the check provided for by paragraph 5-bis personally, Article 17, paragraph 3 is applied .
(Information on the portal management)
1. The portal must contain, in a summarised and easily comprehensible form, also by means of multimedia techniques, the information regarding:
a) to the manager, including the telephone numbers and e-mail addresses; to the subjects who hold the control or, if there are none, to the subjects who hold stakes of at least twenty percent of the share capital; to the subjects with duties of administration, direction and control ;
b) the activities performed, including the methods for selecting the offers, and any activities outsourced to third parties;
b-bis) at the starting, interruption or resumption date of the activity ;
c) to the procedures for the management of the orders relative to the financial instruments offered through the portal, specifying whether the manager proceeds directly with the verification referred to by Article 13, paragraph 5-bis or if this is carried out by banks and investment companies pursuant to Article 17, paragraph 3 ;
d) any costs charged to the investors;
e) the measures adopted to reduce and manage fraud risks;
f) the measures adopted to ensure the proper handling of the personal data and information received from investors, pursuant to legislative decree n° 196 of 30 June 2003 as subsequently amended;
g) the measures adopted to manage conflicts of interest;
h) the measures adopted to deal with complaints and indication of the address to which complaints must be sent;
i) the mechanisms for the out-of-court resolution of disputes;
j) the aggregate data on the offers made through the portal and on the relative results;
k) the relevant legislation , the indication of the hypertext link to the register and to the investor education section of the Consob website and to the special section of the Register of Enterprises provided by article 25, paragraph 8 of the decree;
l) details of any sanctions and precautionary provisions adopted by the Consob;
m) the initiatives that the portal manager will adopt against issuers in the case of failure to observe the portal functioning rules; if no such initiatives exist, the fact must also be indicated.
(Information on the investment in financial instruments through portals)
1. The portal manager must provide to investors, in a brief and easily comprehensible form, even by the use of multimedia techniques, the information on the investment in financial instruments through portals, regarding at least:
a) the risk of losing the entire invested capital;
b) the risk that it may be impossible to immediately cash in the investment;
c) the ban on distributing profit of innovative start-ups pursuant to Article 25 of the decree ;
d) the taxation benefits applicable to such investments (especially regarding the temporary nature of the benefits and the hypothesis of their loss);
e) for innovative start-ups the derogations from corporate law contemplated by Article 26 of the decree and from the bankruptcy law contemplated by Article 31 of the decree ;
e-bis) for innovative SME the derogations from corporate law contemplated by Article 26 of the decree ;
f) the contents typical of a business plan and of the regulations or statute of a UCITS ;
g) the withdrawal right pursuant to article 13, paragraph 5, and the relative procedures for its exercise.
2. The portal manager must ensure that non-professional investors may access sections of the portal where it is possible to adhere to the single offers only if they:
a) have read the information of investor education provided by article 14, paragraph 1, letter k) and the information referred to in paragraph 1;
b) given information on his own knowledge and experience to understand the essential features and risks that the financial instruments of the offer involve, if the manager carries out directly the check pursuant to Article 13, paragraph 5-bis. This information refers at least;
i) to the types of services, transactions, carried out also via on-line portals, and financial instruments with which the investor is familiar;
ii) to the nature, the volume and the frequency of the transactions, carried out also through on-line portals, on financial instruments, carried out by the investor and the period during which the transactions have been carried out;
iii) to the investor' s level of instruction, occupation or, if relevant, previous occupation ;
c) declared that they can financially sustain the possible entire loss of the investment they intend to make.
(Information on the offer)
1. For each offer, the portal manager must publish:
a) the information indicated in Annex 3 and the relative updates provided by the bidder, also in the case of significant changes that may occur or material mistakes found in the offer, simultaneously informing the individuals who have adhered to the offer of each update ;
b) the identification details of the banks or the investment companies which provide the processing of the orders and the identification details of the account contemplated by article 17, paragraph 6;
c) details of the procedures for the exercise of the right of revocation contemplated by article 25, paragraph 2 ;
d) the frequency and procedures by which the information on the state of the adhesions, the amount underwritten and the number of adherents will be provided;
d-bis) the indication of the possible alternative system for the transfer of the stakes representing the capital of innovative start-ups and innovative SME established as limited liability companies pursuant to Article 100-ter, paragraph 2-bis, of the Consolidated Law and the relative procedures to exercise the choice of system to be applied .
2. The information indicated in paragraph 1 can also be provided by the use of multimedia techniques. The portal manager shall allow for the acquisition of the information specified in paragraph 1, letter a), on durable support.
(Obligations related to the investors' adhesion orders management)
1. The portal manager shall adopt measures in order to ensure that the offer adhesion orders received by the investors are:
a) processed quickly, correctly and efficiently;
b) registered promptly and accurately;
c) transmitted with indication of the identity details of each investor, according to the chronological sequence by which they are received.
2. The banks and investment companies shall provide for the processing of the orders received via a portal manager and immediately inform on the relative results, ensuring respect for what is provided by paragraph 6 .
3. The banks and investment companies which receive the orders shall operate towards the investors in respect of the applicable provisions contained in Part II of the Consolidated Law and the relative implementation regulations, if the following conditions are met:
a) if the orders are issued by investors who are natural persons and the relative counter value is more than five hundred Euro per single order or one thousand Euro for all the orders in any one year;
b) if the orders are issued by investors who are legal persons and the relative counter value is more than five thousand Euro per single order or ten thousand Euro for all the orders in any one year .
4. The provisions contained in paragraph 3 are not applied when the manager carries out directly the check contemplated by Article 13, paragraph 5-bis .
5. The portal manager who does not directly carry out the check proposed by Article 13, paragraph 5-bis acquire from the investor, in a format which allows its storage, a statement declaring that the investor has not exceeded, in the year of reference, the threshold indicated in paragraph 3.. For this purpose, the total amount shall be the sum of the investments processed via
the portal to which the orders were transmitted and all those through other portals .
6. The portal manager must ensure that, for each offer, the funds necessary for processing the orders are deposited on the non-transferable account destined to the bidder held in the issuer's name at the banks and investment companies to which the orders are transmitted pursuant to article 25.The manager communicates to the bank or investment company where the provision has
been paid the information relative to the conclusion of the offer. The relative funds are transferred to the bidder after the conclusion of the same .
(Obligations of investor protection due to the operational risks)
1. The portal manager shall ensure the integrity of the information received and published providing itself with reliable and secure operating systems.
2. For compliance with the requirement of paragraph 1, the portal manager:
a) shall identify the sources of operating risks and shall adopt adequate procedures and controls, also to avoid operational interruptions;
b) shall adopt suitable back-up devices.
1. The portal manager shall ensure the confidentiality of the information acquired from the investors pursuant to its own activity, except towards the bidder and for the purposes connected with the processing of the offer, as well as in any other case in which disclosure is imposed or allowed by law or regulations .
1. The portal shall store in an orderly manner and for at least five years, in electronic or hardcopy format, copies of the correspondence and the contractual documentation related to the portal management, including:
a) receipt of the adhesion orders made through the portal and the exercise of the withdrawal and revocation rights;
b) the transmission of the orders to the banks and investment companies for the purpose of underwriting the financial instruments offered;
c) receipt of the confirmations of the underwriting of the financial instruments offered;
d) the certifications contemplated by Article 17, paragraph 5 and the certifications which indicate the classification of professional customer received pursuant to Article 24, paragraph 2-bis .
(Notice to the Consob)
1. The portal manager shall send to the Consob, without delay, the information on:
a) amendments of the articles of association;
b) changes in the controlling shareholders with indication of the respective participation hold in absolute value and in percentage terms, together with the declaration relative to holding the integrity requirements to be met pursuant to article 8;
c) changes in the persons who perform managerial and supervisory functions, with indication of the relative powers and any delegated power, together with the declaration relative to the integrity and professional requirements set forth by article 9;
d) communications received pursuant to article 10, paragraph 1;
e) resolutions on suspension or revocation of offices, adopted pursuant to article 11, paragraph 2.
1-bis. If the manager intends to directly carry out the check contemplated by Article 13, paragraph 5-bis, he informs Consob 60 days before starting the said activity, together with the description of the internal procedures put in place .
2. The manager shall communicate to the Consob without delay the starting, interruption and resumption dates of the activity.
3. Within 31 March of every year, the portal manager shall transmit to the Consob:
a) the report of the activities performed and the organisational structure according to the scheme provided by Annex 2, pointing out any changes that have occurred to the information already communicated. If there have been no changes, the report may not be sent, it remaining understood that such a circumstance must be communicated;
b) the data on portal activities, with indication of at least the aggregate information on the offers made during the previous year and the relative results, according to the scheme prepared by Consob, as well as the ancillary services performed in connection with the said offers ;
c) the data on cases of operational interruption and on the relative duration, together with the description of the actions taken to resume correct working of the portal;
d) the data on complaints received in writing, the measures adopted to remedy any shortcomings found, and the activities planned.
Sanctions and precautionary measures
1. The Consob, in the case of need and urgency, may order a precautionary suspension of the manager' s activity for a period of no more than ninety days if there are valid grounds implying the existence of serious infringements of the law or of the general or specific provisions issued by the Consob pursuant to which the manager would be struck off the register.
1. Without prejudice to the provisions of article 50-quinquies, paragraph 7, first sentence, of the Consolidated Law on fines, the Consob shall:
a) order the suspension of practice on the part of the portal manager in case of serious breach of the rules of conduct set forth by title III ;
b) order the disqualification of the portal manager in the case of:
1) facilitating the collection of risk capital in the absence of the conditions established by article 24 or on behalf of companies other than by the bidders ;
2) falsifying the investor's signature on the contractual forms or on other digital or analogue documentation;
3) the availability, also temporary, of sums of money or the detention of third parties’ financial instruments;
4) the communication or transmission to the investor or to the Consob of false or untrue information or documents;
5) the transmission to banks and investment companies of orders regarding the underwriting of financial instruments not authorised by the investor;
6) failure to communicate to banks and investment companies that an investor has exercised the withdrawal right pursuant to article 13, section 5, or the revocation right pursuant to article 25;
7) repetition of behaviour that has given rise to a suspension order adopted pursuant to letter a);
8) every other breach of specific rules of conduct of particular seriousness.
RULES FOR OFFERS VIA PORTALS
(Conditions relative to offers on the portal)
1. For the admission of offers made via the portal, the portal manager must check that the issuer's articles of the innovative start-up or of the innovative SME contemplates :
a) the right, in favour of non-professional investors or investors other than the other categories indicated in paragraph 2 which have acquired or underwritten financial instruments offered via a portal, to withdraw from the company or to sell the participation instruments, as well as the relative procedures and conditions to exercise the mentioned rights, in case the controlling
shareholders, after the offer, transfer directly or indirectly the company’s control to third parties. Such rights are recognised for the period during which the requirements set forth by article 25, paragraphs 2 and 4 of the decree, are fulfilled and, in any case, for at least three years from the conclusion of the offer ;
b) communication to the company and the publication of the shareholders' agreements on the issuer's Internet site of the company .
2. For the purposes of concluding the offer on the portal, the manager checks that a stake of at least 5% of the financial instruments offered has been subscribed by professional investors or by bank foundations or by innovative start-up incubators contemplated by Article 25, paragraph 5, of the decree or by investors in support of innovation with a value of the financial instruments
portfolio, including cash deposits, higher than five hundred thousand Euro, holding the requisites of integrity required by Article 8, paragraph 1 and at least one of the following requisites:
i) having made, in the last two years, at least three investments in the share capital either as shareholders' loans in innovative start-ups or innovative SME, each of which for at least fifteen thousand Euro;
ii) having covered, for at least twelve months, the office of executive director of an innovative start-up or an innovative SME, other than the offering company .
2-bis. For the purposes of paragraph 2, the professional customer, on request, transmits to the manager a certification issued by an intermediary of whom he is a customer, which shows the classification as a professional customers. For the purposes of ascertaining the investor's capacity to support the innovation, the subject concerned presents to the manager: one or more statements
issued by banks or investment companies indicating that the value of the financial instruments portfolio, including cash deposits, is higher than five hundred thousand Euro; the certifications testifying to the non-existence of one of the situations contemplated by Article 8, paragraph 1 or, if allowed by the managers, the affidavit/certification rendered pursuant to Articles 46 and 47 of
the Decree of the President of the Republic no. 445 of 28 December 2000; the Chamber of Commerce certificates of incorporation of innovative start-ups or innovative SME covered and the relative delegations; for each transaction, the certification of the start-up or SME which testifies to the investments made in the last two years .
(Funding and right of revocation)
1. The funding necessary for executing processing of the offer adhesion orders must be deposited in a tied account destined to the bidder held at the banks or investment companies to which the orders are transmitted. The currency date of the deposit cannot pre-date the day on which an investor underwrites the financial instruments .
2. Non-professional investors who have expressed the will to underwrite financial instruments offered via a portal, have the right to revoke their adhesion when, between the adhesion to the offer and the date on which the offer is definitively closed, any new fact arises or a relevant material mistake occurs concerning the information given on the portal, which could influence the decision
on the investment. The revocation right can be exerted within seven days from the date on which the investors have knowledge of the new information.
3. In the case of the exercise of the withdrawal or revocation right, and in the case of the non-conclusion of the offer, the funds relative to the provision referred to in section 1 shall be returned to the full availability of the investors.
INSTRUCTIONS FOR THE PRESENTATION OF THE APPLICATION FOR AUTHORISATION FOR ENTRY IN THE REGISTER OF MANAGERS AND FOR THE COMMUNICATION FOR THE PURPOSE OF THE ANNOTATION IN THE SPECIAL SECTION
A. Application for authorisation to be entered in the register
1. The registration authorisation application, undersigned by the legal representative of the company, must specify the company name, the company's registered head office and administrative head office, the address of the permanent seat in the Italian Republic for Community subjects, the address of the Internet site of the portal, the name and contact data of a company representative
and the list of the accompanying documents.
2. The registration authorisation application must be accompanied by the following documents:
a) copy of the deed of incorporation and of the Articles of Association accompanied by the substitute declaration submitted pursuant to decree of the President of the Republic no. 445 of 28 December 2000, certifying current valid existence issued by the Companies Register Office;
b) the list of subjects holding control with indication of their respective stakes in absolute value and in percentage terms, with indication of the subject through which the stake is held in the case of indirect shareholdings;
c) the documentation for verification of the requirements of honour of the subjects who hold the control of the company:
i) for natural persons:
- declaration in lieu of affidavit/certification (pursuant to Articles 46 and 47 of the decree of the President of the Republic no. 445 of 28 December 2000) testifying to the non-existence of any situation contemplated by Article 8 of the Regulation;
- declaration in lieu of affidavit/certification (pursuant to Articles 46 and 47 of the decree of the President of the Republic no. 445 of 28 December 2000) testifying to the non-existence of any situation contemplated by Article 11 of the Regulation;
- substitute declaration submitted pursuant to Article 46 of decree of the President of the Republic no. 445 of 28 December 2000, of the certification of the companies register bearing the anti-mafia statement.
ii) for legal persons:
- report of the board of directors or the equivalent body demonstrating that verification has been carried out on the requirements held by the directors or the director of the subjects who cover equivalent offices in the participated company or entity;
d) list of the names of all the subjects who perform administrative, direction or control functions;
e) the minutes of the meeting in which the administrative body has checked that the requirements of professional standing and honour are held by the subjects called upon to perform administrative, directive and control functions, accompanied by the relative annexes;
f) a report on the company's business and organisational structure drawn up according to the scheme given in Annex 2 .
B. Communication for annotation in the special section of the register
1. The banks and investment companies authorised to perform investment services shall communicate, before starting the activity, the performance of the portal management service indicating the company name, the Internet site address of the portal, the relative hypertext link and the name and contact data of a company representative. The communication shall be undersigned by the
company’s legal representative.
REPORT ON THE COMPANY'S BUSINESS AND ORGANISATIONAL STRUCTURE
A. Company business
The manager must describe in detail the activity it intends to perform. In particular, the manager must indicate:
1. the methods adopted to select the offers to be presented on the portal;
2. the advisory service, if any, provided to the innovative start-up and of the innovative SME regarding strategic analyses and financial assessments, business strategy and related questions ;
3. whether periodic information will be published on milestones reached by the innovative start-up and of innovative SME whose financial instruments are offered on the portal and/or periodic reports on the trend of the companies themselves ;
4. whether any mechanisms will be implemented for the periodic value of the financial instruments underwritten via the portal or for the recording of the prices of any transactions in those financial instruments;
5. whether any mechanisms will be implemented to facilitate information flows between the innovative start-up or the innovative SME and the investors, or between the investors ;
5-bis. the description of the internal procedures for checking contemplated by Article 13, paragraph 5-bis, if it is to be carried out for every order received for adhesion to the offers ;
6. any other activities.
B. Organisational structure
The portal manager shall provide at least the following information in detail:
1. a description of the company structure (organisational chart, chart of offices, etc.) with indication of the delegated powers, according to the company organisation, the control mechanisms implemented and every other useful elements to illustrate the manager's operational features;
2. the plan, if any, for hiring personnel and the relative state of implementation, or indication of the personnel in office to be used for carrying out the business. The plan must also specify the existence of any employees or collaborators who have carried out certified professional or academic research activities at public or private universities and/or research institutes in Italy or
abroad, on matters concerning corporate finance and/or business economics and/or corporate law and/or marketing and/or new technologies and/or technical-scientific matters, with indication of the relative roles and functions performed within the company organisation;
3. the procedures, including IT procedures, to ensure respect for the obligations pursuant to articles 13, 14, 15 and 16 of this Regulation;
4. systems for processing the orders received from the investors and in particular to ensure the compliance with the conditions provided by article 17, paragraph 1, of this regulation ;
5. the procedures for the transmission of the orders collected from investors to banks and investment companies;
6. a description of the IT infrastructure developed for receiving and transmitting the investors' orders (system reliability, security, integrity, privacy, etc.);
7. the place and methods for documentation archiving;
8. the policy for identifying and managing conflicts of interest;
9. the policy for fraud prevention and privacy protection;
10. any outsourcing to third parties:
a. of the strategy for the selection of the offers to be presented on the portal, with specification of the scope and content of the mandate;
b. of any other activities or services.
In particular, the activities outsourced, the subjects mandated, the content of the mandates conferred and the measures to ensure control over the outsourced activities and to mitigate the connected risks, must be specified;
11. the possible existence of mandates assigned for the selection of the offers received by other portal managers, indicating the scope and the contents of the same;
12. the fee structure for the services offered by the portal manager.
This Annex is part of the provisions adopted pursuant to article 50-quinquies, paragraph 5, letter a) of the Consolidated Law and it also has the purpose of constituting the information base (which will be periodically updated) available to the Consob and which can help to direct and programme the Consob supervisory action.
INFORMATION ON THE OFFER
1. Advisory notice
The manager must ensure that the following graphically highlighted warning is expressed in advance for each offer: “The information on the offer is not subjected to approval by Consob. The bidder is the sole subject responsible for the completeness and truth of the data and information supplied by the same. We also call the investor's attention to the fact that the investment,
even if indirect, by UCITs or companies which invest mainly in financial instruments issued by innovative start-up companies and innovative SME is not liquid and bears a very high risk." .
2. Information on risks
Description of the specific risks of the bidder and of the offer .
3. Information on the bidder and on the financial instruments offered
a) description of the bidder:
- for innovative start-up companies and innovative SME, the description of the industrial project, with indication of the sector of social usefulness in the case of an innovative start-up with a social vocation, of the relative business plan and indication of the hypertext link to the bidder's Internet site which contains the information requested respectively by Article 25,
paragraphs 11 and 12, of the decree and by Article 4, paragraph 3, of the Decree Law no. 3 of 24 January 2015 converted with amendments by Law no. 33 of 24 March 2015. With reference to the accounting information, if available, the essential data at 31 December prior to the start of the offer relative to sales, the net and gross operating margins, the profit of the year, the total assets,
the ratio of intangible fixed assets to total assets, the net financial position and the auditor's opinion must be given. For the complete accounting information, the direct hypertext links must be expressly indicated;
- for UCITS which invest prevalently in innovative start-ups and in innovative SME, the hypertext link to the regulations or to the Articles of Association and to the six-monthly report of the UCITS and to the offer document containing the information made available to the investors, drawn up in compliance with Annex 1-bis of the Regulation approved by Resolution no. 11971 of 14 May 1999
as successively amended;
- for companies which invest prevalently in innovative start-ups and innovative SME, the investment policy and indication of the companies in which stakes are held with indication of the hypertext link to the respective Internet sites;
b) description of the corporate bodies and the curriculum vitae of the directors;
c) description of the financial instruments offered, the percentage of the bidder's share capital represented by the same, the administrative and equity rights connected with the same and the relative procedures for exercise;
d) description of the clauses drawn up by the innovative start-up companies or by the innovative SME regarding cases in which the controlling shareholders sell their own stakes to third parties after the offer (the investment way-out procedures, the existence of any repurchase agreements, possible lock-up and put option clauses in favour of the investors, etc.) with indication of the
duration of the same, in respect of the rulings of Article 24 .
4. Information on the offer
a) general offer conditions, including indication of addressees, and any clauses governing the effectiveness and the possibility of revocation or the adhesions;
b) information on any participation already underwritten by professional investors or the other categories of investors listed under article 24, with indication of the identity of the latter;
c) indication of any costs or commissions charged to the investor, including any expenses for the subsequent transmission of the orders to banks and investment companies;
c-bis) indication of every payment, expense or charge bearing on the subscriber in relation to the possible alternative system for transfer of the units contemplated by Article 100-ter, paragraph 2-bis, of the CLF ;
d) description of the methods for calculating the quota reserved to professional investors or the other categories of investors listed under article 24, and procedures and terms for the publication of the information on the state of the adhesions to the offer;
e) indication of the banks and investment companies to which the orders will be transmitted for the underwriting of the financial instruments offered and the description of the procedures and the term for the execution of the same, as well as the existence of any conflicts of interest concerning such banks and investment companies;
f) information on the non-transferable account opened pursuant to article 17, paragraph 6, on the date of the effective charge of the funds onto the underwriters' accounts;
g) information on the procedures for the return of the funds in the case of the legitimate exercise of the withdrawal or revocation rights, and if the offer is not completed;
h) terms and conditions for the payment and the assignment/delivery of the financial instruments underwritten;
i) information on the conflicts of interest in connection to the offer, including those deriving from agreements existing between the bidder and the portal manager, those who hold the control, the persons who perform managerial and supervisory functions and any professional investors and other categories of investors listed under article 24 which have already underwritten the quota
of the financial instruments reserved to the same ;
j) information on the execution, on the part of the bidder, of offers for the same financial instruments on other portals ;
k) the applicable law and the court of jurisdiction;
l) the language or languages in which the information on the offer will be provided.
5. Information on any services offered by the portal manager in relation to the offer
Description of the activities connected to the offer performed by the portal manager.
* * *
[Certain qualitative requirements of the offer form are also defined]
The information on the offer shall be easily understandable to a reasonable investor and must be given in a non-technical language, without the use of specific jargon, shall be clear and concise, and shall make use of common linguistic terminology as far as possible. The information shall also be given in a manner that allows for comparison between the offers performed
through the portal.
The presentation and structure of the document shall facilitate the reading by the investors, also by being printed in letters of a legible size. The said document must be no longer than five pages of A4 format. If colours or logos typical of the company are used, they must not compromise the understanding of the information if the document including when the information on the
offer is printed or photocopied in black and white.