Regulation containing rules establishing the integrity requirements for the shareholders of Italian investment firms, asset management companies and SICAVs and the significant thresholds (Adopted by the Minister of the Treasury, the Budget and Economic Planning with Decree 469/1998)(1)
Article 1
(Integrity of shareholders of Italian investment firms,
asset management companies and SICAVs)
1. Persons holding more than 5 per cent of the voting capital of an Italian investment firm, asset management company or SICAV may not exercise the voting rights attached to the shares in excess if they:
a) have been the subject of precautionary measures imposed by the judicial authorities under Law 1423/1956 or Law 575/1965, as amended, without prejudice to the effects of rehabilitation;
b) have been condemned in an unappealable judgement, without prejudice to the effects of rehabilitation, and sentenced to:
1) a period of imprisonment of not less than six months for one of the offences provided for in the legislation on banking, financial, securities and insurance business or in the legislation on securities markets and securities or payment instruments;
2) a period of imprisonment of not less than six months for one of the offences provided for in Title XI of Book V of the Civil Code or Royal Decree 267/1942;
3) a period of imprisonment of not less than one year for a crime against the public administration, the public faith, property, the public order, the public economy or for a tax offence;
4) a period of imprisonment of not less than two years for any offence committed with criminal intent.
c) have been sentenced to one of the punishments referred to in subparagraph b) in a judgement that applies the punishment at the request of the parties, except in the case of the extinction of the crime. The punishments referred to in subparagraph b), points 1) and 2), shall not count if the period is less than one year.
2. Paragraph 1 shall apply to persons holding an interest in a SICAV exceeding:
a) 5 per cent of the capital represented by registered shares if the bylaws provides for limits on the issue of registered shares;
b) the lower of the thresholds of 20,000 registered shares and 10 per cent of the share capital represented by registered shares if the bylaws do not provide for limits on the issue of registered shares.
3. Paragraph 1 shall also apply to persons who, regardless of the size of the interest held, control an Italian investment firm, asset management company or SICAV pursuant to Article 23 of Legislative Decree 385/1993. In such case the prohibition on exercising voting rights shall apply to the whole interest.
4. If the shareholder is a legal person, the requirements referred to in paragraphs 1 and 2 must be satisfied by the directors and the general manager or the persons holding equivalent positions.
5. With reference to cases governed entirely or partly by foreign law, the satisfaction of the requirement laid down in this article shall be verified on the basis of an evaluation of the substantial equivalence of the rules carried out by Consob in the case referred to in Article 3.2a) and by the Bank of Italy in the cases referred to in Articles 3.2b) and 3.2c).
Article 2
(Method of calculating the percentage of the capital)
1. For the purpose of verifying the conditions specified in Articles 1.1 and 1.2, account shall be taken of:
a) the shares held directly and of those transferred under stock exchange repos, even if the person is deprived of the voting rights;
b) the shares held indirectly by way of subsidiaries, trust companies or nominees;
c) the shares for which the person in any cases possesses the voting rights;
d) the existence agreements on the exercise of voting rights. In such cases the integrity requirements must be satisfied by all the parties to the agreement on the exercise of voting rights, regardless of the percentage of the share capital of the Italian investment firm, asset management company or SICAV held by each party.
2. Interests that, taking into account those already held, cause the limits established in Article 1.2 to be exceeded, give the right to vote from the date of the notification to the Bank of Italy.
Article 3
(Verification of the satisfaction of the requirements and
prohibition to exercise voting rights)
1. It shall be up to the chairman of the shareholders' meeting, as part of his/her duty to verify the regular constitution of the meeting and legitimate the shareholders, to allow or not allow persons to vote who, on the basis of the available information, are required to prove that they satisfy the integrity requirements.
2. Satisfaction of the requirements shall be verified by:
a) Consob when authorizing investment firms
b) the Bank of Italy when authorizing asset management companies and SICAVs;
c) the Bank of Italy when verifying the eligibility of persons who intend to acquire a qualifying holding in an Italian investment firm, asset management company or SICAV.
Article 4
(Transitional provisions)
1. For persons with an interest in the capital of a company at the date of entry into force of this decree, failure to satisfy the requirements referred to in Article 1 that were not present in the earlier legislation shall not count if the failure existed before such date, exclusively with reference to the interest already held.
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footnotes:
1. The decree and the attached regulation were published in Gazzetta Ufficiale no. 7 of 11 January 1999.
