Weekly newsletter - year XXIV - No. 26 - 2 July 2018
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 -
Pursuant to art. 7- octies, letter b) of Italian Legislative Decree no. 58/1998 (Consolidated Law on Finance - TUF), the National Commission for Companies and the Stock Exchange has ordered the following companies to cease the infringement of art. 18 of the TUF consisting of the provision of unauthorised investment services and activities to the Italian public:
- Solid Capital Ltd and Vortex Capital Ltd, via the www.axecc.io website (Resolution no. 20509 of June 28, 2018);
- MarketTM Ltd, Ft Global Services Ltd, Ft Global Ltd and Lordos Enterprise Ltd, via the www.markettm.com website (Resolution no. 20510 of June 28, 2018).
The supervisory authorities of the United Kingdom (Financial Conduct Authority - FCA), Switzerland (Swiss Financial Market Supervisory Authority FINMA -), Sweden (Finansinspektionen), Austria (Financial Market Authority - FMA), Poland (Polish Financial Supervision Authority - KNF), Hong Kong (Securities and Futures Commission - SFC), Ontario (Ontario Securities Commission - OSC), Australia (Australian Securities and Investments Commission - ASIC) and Argentina (Comisión Nacional de Valores- CNV), report the companies and websites that are offering investment, financial and insurance services without the required authorisation.
Reported by the FCA:
- Apex Financial Group Ltd / Apex F G Ltd (www.apexfinancialgroup.co.uk), with declared registered address in London;
- Tradex Apex (www.apextradex.com, www.apextdxoption.com), with declared registered address in London, clone of the authorised company, Monecor (London) Ltd (www.etxcapital.com; ref. no. 12472);
- Smart Spend Limited (www.wellpreferedcards.com, www.justaboutgiftcards.com, www.pickyouronlinecard.com, www.happyvcards.com, www.easytogetcards.com), with declared registered address in London, clone of the authorised company, Cfs-Zipp Limited (ref. no. 900027);
- PGM Patrimoine (www.pgm-patrimoine.com), with declared registered address in London, clone of the authorised company, Pictet Global Markets (UK) Limited (www.pictet.com), with registered address in London (ref. no. 186740);
- Arden & Partners, with declared registered address in London, clone of the authorised company, Arden Partners PLC (ref. no. 214032);
- TotallyMoney/Totally Money, clone of the authorised company, Mi Money Limited (ref. no. 511936);
- Loans on Benefits Pvt Ltd (www.loansonbenefit.co.uk) with declared registered address in Glasgow;
- Privè Global Management Services Ltd (www.pgms.co), with declared registered address in London, clone of the authorised company PGMS (Ireland) Limited (ref. no. 464322);
- Publiczny Kapital Oszczednosci (www.publicnzykapital.cOM), clone of the authorised company, Powszechna Kasa Oszczednoisci Bank Polsky Sa (ref. no. 465749);
- EU Capital (www.eu-capital.co) with declared registered address in the Marshall Islands;
- Coin Boost Inc. (www.coinboost.info), with declared registered address in New York;
- Storm Finance Limited, with declared registered address in the United Kingdom.
Reported by FINMA:
- Funny Sa (www.funnysaswiss.ch).
Reported by Finansinspektionen:
- BR Consulting Group Ltd / Brfxtrade www.brfxtrade.com), (with declared registered address in St. Vincent and the Grenadines;
- 8888markets (www.8888markets.com) with declared registered address in Dublin;
- Moretti & Associates (www.morettiandassociates.com), with declared registered addresses in Hong Kong, Tokyo, Shanghai and Taipei.
Reported by the FMA:
- Celestial Trading Ltd / Tradovest (www.tradovest.com), with declared registered address in the Seychelles;
- Sun Capital Limited (www.tradeu2.com), with declared registered addresses in St. Vincent and the Grenadines, Frankfurt and Zurich.
Reported by the KNF:
- Vortex Assets - Black Parrot Limited;
- Mia Sp. z o.o.
Reported by the SFC:
- Wayne Global Limited (www.waynefx.com), with declared registered addresses in Hong Kong and in the Marshall Islands;
- Xiang Gang Kai Si Bo (http://kqphs.com);
- WG Consultant Limited (www.wgixau.com), with declared registered addresses in Hong Kong and Auckland;
- Tricom Securities Limited (www.tricomsec-hk.com, with declared registered address in Hong Kong.
- Kartarie (www.kartarie.com), with declared registered address in Hong Kong;
- The Kimble, May and Bains Group (www.thekmbgroup.com) with declared registered address in Hong Kong;
- 伯克國際 (Chinese name only);
- Gulf FX Investments / Gulf FX Ltd (www.gulffx.com), with declared registered addresses in London, Sydney, Paris and Tokyo;
- 柏富諾互聯網劵商服務平台 (Chinese name only).
Reported by the OSC:
- Bristol Consulting Fx (www.bristolconsultingfx.com), with declared registered address in Panama.
Reported by ASIC:
- Stern Options / aka Stern Markets (www.sternoptions.com), with declared registered address in Sofia;
- Hamburg Capital (www.hamburgcapital.net), with declared registered address in Hong Kong.
- Olympia Capital Exchange (www.olympiacapitalx.com), with declared registered address in Panama;
- Alliance FX Capital Ltd (www.alliancefx.capital), with declared registered address in Singapore;
- Imperial (Hong Kong) Limited / aka Imperial Limited (www.imperialhklimited.com.hk), with declared registered address in Hong Kong;
- Canyon International HK (www.canyon-internationalhk.com), with declared registered address in Hong Kong.
- Johnson Financial Consulting (www.johnsonfinancialconsulting.com), with declared registered address in Tokyo.
Reported by the CNV:
- Córdoba Valores Sa.
The French supervisory authority (Authorité des Marchés Financiers - AMF) has published a list of new websites that offer atypical investment services and investment services on Forex markets without authorisation.
- www.binarycent.com / Cent Projects Ltd / Finance Group Corp;
- www.raceoption.com / Affort Projects SA / Finance Group Corp;
- www.videforex.com / Affort Projects SA / Finance Group Corp.
The complete list of unauthorised websites is published on the AMF website, at the following address: http://www.amf-france.org.
Go ahead of the memorandum of understanding between CONSOB and the Financial Advisors' Register Supervisory Body (OCF) on the initiation of OCF operations. The signing of the protocol allows the transfer to the OCF of investigation functions currently assigned to CONSOB with regard to financial advisors authorised to perform door-to-door selling and to preliminary activities for the default registration of independent financial advisors and financial advice companies, pursuant to article 7 of Ministerial Decree no. 206/2008.
The initiation of OCF operations is set for today, July 2, 2018 (Resolution no. 20503 of June 28, 2018), limited to:
1) investigation activities concerning registration on the register - with exemption from the evaluation test - of independent financial advisors and financial advice companies, pursuant to article 7 of Minsterial Decree no. 206/2008;
2) the powers of supervision referred to in article 31, paragraph 7, of the Consolidated Law on Finance for conducting investigations in relation to the initiation of one-year precautionary proceedings (art. 7-septies, paragraph 2, of the Consolidated Law on Finance) as well as sanctioning proceedings (article 196, Consolidated Law on Finance), with regard to financial advisors authorised to perform door-to-door selling.
On June 28, 2018 CONSOB launched a public consultation to define the threshold for exemption from prospectus publication within the scope of the provisions of article 34-ter of the Issuers' Regulation, in order to adapt national legislation to Regulation (EU) 2017/1129. Indeed, on June 14, 2017, there was the approval of the aforementioned Regulation on the prospectus to be published for the public offer or the admission to securities trading on regulated markets (so-called "Prospectus Regulation").
The new provisions include in the Prospectus Regulation aim to simplify and harmonise the legislation currently in force in order to improve its efficiency and encourage investment within the European Union. There is particular focus on small and medium-sized enterprises (SMEs). Many of the provisions seek, in fact, a balance between the requirements of the investor protection and the need to reduce the administrative obligations, and therefore the costs, for SMEs that intend to open up to the capital market.
The new Prospectus Regulation entered into force on July 20, 2017 and some provisions came into effect from that same date; in particular, the provisions relating to the exemption from the obligation to publish a prospectus in the event of admission to trading on a regulated market.
Other provisions of the Prospectus Regulation will instead come into effect on later dates:
- from July 21, 2018, provisions on the exemption from the obligation to publish an offer prospectus for offers of securities whose value is below certain thresholds;
- from July 21, 2019, all remaining provisions. These final provisions include, in particular, provisions that promote a proportionate information regime for SMEs.
With reference to the provisions that will apply from July 21, 2018, the Prospectus Regulation have increased the minimum threshold, as compared to the previous directive, from 100,000 euro to 1,000,000 euro, below which Member States cannot demand the publication of an offer prospectus. Below this threshold, Member States shall only have the option of establishing other information obligations that do not consist of a prospectus.
The Prospectus Regulation award Member States the discretion to grant exemption from prospectus publication for offers with a value of between 1,000,000 euro and an upper threshold, which can be set at a maximum of 8,000,000 euro. In the previous prospectus directive, the maximum limit was 5,000,000 euro.
Currently, at national level, in implementation of the provisions of article 100, paragraph 1, letter c) of the Consolidated Law on Finance, art. 34-te r of the Issuers' Regulation establishes that there is no obligation to publish a prospectus for public bids below 5,000,000 euro. Whereas there is the requirement to publish a prospectus in the case of admission to listing on a regulated market (article 113 of the Consolidated Law on Finance), where the grounds for exemption from prospectus publication for admission to trading established by article 57 of the Issuers' Regulation do not apply.
The aforementioned thresholds also apply for the purposes of determining the applicability of the rules of public acquisition or exchange bids provided for by the Consolidated Law on Finance.
To establish the possible regulatory choices for the purpose of exercising the option on the threshold, three possible alternatives were identified:
- the first option is to confirm the threshold of 5,000,000 euro. This option, confirming the status quo, maintains the current level of investor protection unchanged;
- the second option is to increase to 8,000,000 euro (over a period of 12 months) the threshold for exemption from the prospectus publication for all offers to the public;
the third option, in order to combine the opposing needs of maintaining a high level of investor protection, on the one hand, and lightening the administrative burden for SMEs wishing to raise capital on the market, on the other, is to raise the threshold for exemption from the prospectus publication to 8,000,000 euro for certain offers only, with the requirement of an adequate information document for the operations exempt from prospectus publication.
In more detail, the increase of the threshold for the exemption from the obligation to publish a prospectus could be limited only to offers of non-equity securities made simultaneously or subsequent to listing on a regulated market or an SME Growth Market, leaving the current threshold at 5,000,000 euro for all the other offers.
In particular, there is the proposal to require for listed companies both in regulated markets and in a growth market of the SME, that, should they make any offers of equity securities to retail investors with a value of less than 8 million euro and thus exempt from prospectus publication, the issuers must publish, before the offer, a series of information notices the same as those required by Notice 13028158 of April 4, 2013, in particular relating to:
(i) the adequacy of the revenue of the offer in relation to the current financial requirements of the issuer,
(ii) the methods of execution of any commitments of subscription and
(iii) the risks related to the possible poor result of the transaction, limited to cases where there is uncertainty surrounding the prospect of business continuity.
As an alternative to the inclusion of the aforementioned information as part of the explanatory reports for the shareholder meetings to approve of the aforementioned transactions and in price sensitive notices disseminated as a result of resolutions of the shareholder meeting or the board of directors, this information could be included in an independent information document, not subject to prior approval by CONSOB.
The consultation, lasting 45 days, began on June 28 and ended on August 13.
The text of the consultation is available on the www.consob.it website in the section "Regulation - consultations".
On June 28, 2018 CONSOB launched a public consultation on the amendments to be made to the Issuers' Regulation as a result of the transposition of Directive 2016/97/EU on Insurance Distribution (IDD), concerning, in particular, the pre-contractual information notice of financial products issued by insurance companies.
These changes are necessary today in order to adapt the CONSOB implementing regulations to the provisions of legislative decree promulgated on May 21, which transposed into Italian law Directive (EU) 2016/97, consequently amending Leg. Decre. no. 209 of 7.9.2005 (Private Insurance Code - Italian Penal Code) and Leg. Decree no. 58 of 24.2.1998 (Consolidated Law on Finance).
CONSOB has therefore initiated interventions to amend the Issuers' Regulation and Intermediaries' Regulation (subject of a separate consultation), identified within the scope of the joint consultation with IVASS for the coordination of legislation on insurance investment products, including as a result of the application from January 1, 2018, of the PRIIPs Regulation.
The main amendments to the Consolidated Law on Finance concern Articles 1 and 25-ter, with the replacement (article 1, c. 1, letter w-bis) of the definition of financial products issued by insurance companies (Class III and V products), with the new European concept of Insurance Based Investment Products (IBIPs), which also includes Class I re-valuable mixed type products and multi-class products.
This also involves the reformulation of the heading of Article 25-ter, now "Insurance Investment Products" currently with the new definition of IBIP already included in the Consolidated Law on Finance (article 1, paragraph 1, letter w-bis.3) during adaptation of the PRIIPs Regulation (Leg. Decree no. 224/2016).
By thus overcoming two non-coinciding definitions, IBIPs come to constitute a unitary category of products, consistent with European regulations (PRIIPs, IDD).
The amendments proposed also reflect the division of responsibilities between IVASS and CONSOB for distribution channels. In particular, CONSOB is responsible for supervising the distribution of all the IBIPs (thus no longer only financial products issued by insurance companies) performed by banks, investment firms, Poste Italiane Spa, but not in the direct distribution of products by insurance companies.
This distribution is now subject to Title IX of the Private Insurance Code (Italian Penal Code) and to applicable European legislation. The regulatory power of CONSOB over the distribution of IBIPs on channels under its authority is ultimately exercised - having consulted IVASS - in order to ensure uniformity in the regulation of the sale of insurance products regardless of distribution channel used.
As regards, more specifically, the Issuers' Regulation, the amendments presented in consultation are intended to outline a uniform information regime for all IBIPs, to ensure compatibility with the KIDs of the PRIIPs and thus eliminate the duplication and asymmetry of information.
For example, there is the elimination of the requirement of a prospectus for Class III and IV products, in accordance with the provisions of Regulation (EU) 2017/1129, including to ensure greater consistency with Solvency Directive II. The new regulatory framework proposed is therefore structured as follows: (a) the PRIIPs KID illustrating the key elements of the product; (b) the supplementary pre-contractual information document prepared by IVASS, including information about the issuer.
Consultation also covers the proposed repeal of Chapter IV, containing the rules of public offer of financial and insurance products within the different areas under regulation by CONSOB, with consequent amendment of article 34-te r of the Issuers' Regulation.
The consultation lasting 60 days, began on June 28 and ended on August 27, 2018.
The text of the consultation is available on the ww.consob.it in website the section "Regulation - consultations".
The Commission has acknowledged, in accordance with article 20, paragraph 3, subparagraph 4, of Regulation (EU) no. 596/2014 ("Market Abuse Regulation - MAR") and article 114, paragraph 10, of Leg. Decree no. 58/98 (Consolidated Law on Finance), that the self-regulatory provisions included in theCharter of Duties of economic and financial information adopted by the Italian National Council of the Order of Journalists (CNOG) on June 6, are equivalent to the provisions of the same MAR on investment recommendations (Resolution no. 20508 of June 28, 2018).
In particular, parts 8 and 9 of the Charter of Duties refer to the investment recommendations published by journalists.
Part 8) stipulates that, if a journalist drafts an article including investment recommendations, as well as indicating his/her identity, he/she must cite the sources of relevant information unless such sources are confidential. The facts must be kept separate from interpretations, estimates and opinions. Forecasts and price targets must be presented as such and the main assumptions made in their formulation or use must be indicated . Journalists must refrain from drafting articles with investment recommendations on financial instruments or issuers related to his/her own interests or the interests of persons closely linked to him/her.
Part 9) stipulates that, if a journalist presents investment recommendations developed by a third party, he/she must provide full information on the identity of the authors and comply with the substance of the content of these recommendations. If he/she publishes a summary or an extract of a recommendation of investment developed by third parties, in addition to citing the sources, the journalist is obliged to specify that it is a summary and to make reference to the original text. The journalist must make known any interests or conflicts of interest, either personal or of the author of the recommendation, of which he/she is aware. If he/she publishes an investment recommendation developed by third parties to which he/she has made substantial changes, the journalist is also obliged to report the changes made, in compliance, for these changes only, with the obligations referred to in part 8.
Among other parts included in the new version of the Charter of Duties, part 2) is also of particular importance, requiring that journalists must verify the information in their possession by referring to multiple reliable sources.
Finally part 10) requires that journalists and publications ensure, with every means, the diffusion of the Charter of Duties of economic and financial information, including for the purposes of the market abuse disclosure requirements.
CONSOB has approved the tripartite prospectus (consisting of registration document, explanatory note and summary note) relating to the option and the and admission to trading on the Mercato Telematico Azionario (MTA), organised and managed by Borsa Italiana Spa, of Prysmian Spa ordinary shares.
Prysmian operates in the business of terrestrial and submarine cables and systems for the transmission and distribution of energy, special cables for application in various industrial sectors and medium and low voltage cables in the field of construction and infrastructure. For telecommunications, Prysmian produces cables and accessories for voice, video and data transmission, offering a complete range of optical fibres, optical and copper cables and connectivity systems.
As of the date of the prospectus, the parties who hold, directly or indirectly, holdings in excess of 3% of the share capital with the right to vote are: Norges Bank (4.633%); Clubtre Spa (3.690%); T. Rowe Price Associates Inc. (3.066%) No party exercises control over the issuer pursuant to article 93 of the Consolidated Law on Finance.
The issuer has recently acquired General Cable Corporation, relying mostly on borrowing. General Cable Group produces a complete range of cables, including electric and electronic cables, high voltage cables, cables for data transmission, for telecommunications and for submarine use.
The capital increase option - on which the Extraordinary Shareholders' Meeting passed a resolution on April 12 - is designed to rebalance the financial situation of the issuer and of the Prysmian Group post acquisition, in order to reduce the risk of non-compliance with the financial covenants that characterise the financing contracts to which this group is party. The acquisition was performed by the merger by incorporation of Alisea with General Cable, effective as of June 6, 2018. As a result of this operation, the delisting of the General Cable shares from the NYSE was obtained.
The issuer's Extraordinary Shareholders' Meeting on April 12, 2018 approved a share capital increase for a maximum total value of 500 million euro, including any share premium, to be performed no later than July 31, 2019.
In implementation of the resolution passed by the aforesaid Shareholders' Meeting, the issuer's Board of Directors, in a meeting on June 27, 2018, approved the issue of a maximum 32,652,314 new shares for a total value of a maximum of 499,906,927.34 euro (including premium). The new shares are offered as options: (i) to issuer shareholders; and (ii) to the holders of bonds convertible into issuer shares deriving from the convertible bond loan called Prysmian S.p.A. € 500,000,000 Zero Coupon Linked Bonds due 2022, in the ratio of 2 new shares for every 15 rights of option at the price of 15.31 euro per share.
The option rights must be exercised, under penalty of forfeiture, in the period from July 2 to July 19, inclusive. Option rights can be traded on the Stock Exchange from July 2 to July 13, inclusive.
Within the month following the end of the offer period, the options not exercised will be offered on the stock exchange by the company for at least five sessions, pursuant to article 2441, paragraph 3, of the Italian Civil Code. The results of the offer will be notified within 5 working days from the end of the offer period, by means of a dedicated notice.
The issuer has signed a guarantee contract for the commitment of the guarantors (Mediobanca, Goldman Sachs and Banca IMI) to underwrite any unopted newly issued shares at the end of the offer period on the Italian Stock Exchange, up to a maximum total of 499,906,927.34 euro.
Among the "investor warnings" and in the "risk factors" chapter, the prospectus outlines the risks with regard to the issuer and the group, to the business sector in which they operate and to the financial instruments offered.
CONSOB has approved the prospectus concerning the admission to trading of the Triboo Spa ordinary shares on the Mercato Telematico Azionario (MTA), organised and managed by Borsa Italiana Spa.
There will be no concurrent offer for subscription or sale of the shares subject to admission. The shares of the issuer are, in fact, already listed on the Multilateral Trading Facility, AIM Italia - Mercato Alternativo del Capitale (Alternative Capital Market), organised and managed by Borsa Italiana, from March 11, 2014.
On 26 June this year, the Italian Stock Exchange ordered the admission to listing of Triboo shares on the MTA and the simultaneous exclusion of these shares from trading on the AIM.
Triboo is classified as an SME pursuant to art. 1, paragraph 1, letter w-quater.1 of Leg. Decree. 58/98 (Consolidated Law on Finance). The issuer is the head of a group operating (i) in the field of product e-commerce and online sales and (ii) in the field of publishing and online advertising.
As of the date of the prospectus, Triboo is controlled directly by Compagnia Digitale Italiana Spa, which holds 59.9% of the share capital, and indirectly by Giulio Corno, CEO of the issuer, who holds 91.5% of the share capital of Compagnia Digitale Italiana. First Capital Spa, financial holding company specialised in SME investment, listed on the AIM Italia, holds 6.99%. The floating value, represented by shareholders with shareholdings of less than 5%, is 31.87%.
As a further result of Triboo's admission to trading on the MTA, Compagnia Digitale Italiana will control the issuer by law.
Among the "investor warnings" and in the "risk factors" chapter, the prospectus outlines the risks with regard to the issuer and the group, to the market in which they operate and to the financial instruments listed..
We remind you that, as of June 11, the game that "teaches that investing is not a game" is online on the CONSOB website (http://www.consob.it/web/investor-education/il-percorso-per-l-investimento): this game helps you assume the role of investor, thinking about how to act to manage risks and understand that if something is not in line with expectations, you can learn from your mistakes and start the game again! The game is the result of collaboration between CONSOB and the University of Trento.
The game also involves a competition, "Give the Game a Name"; in fact, the game is as yet unnamed and the Commission is asking "players/investors" to decide one together. So, players are asked to suggest a name when they have finished playing. The winner will be announced during the first week of October, when CONSOB will be promoting the second edition of World Investor Week.
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)
Regulations, guidelines and notices
Issue of the decision of equivalence to the self-regulatory standards included in the Charter of Duties of economic and financial information adopted by the Italian National Council of the Order of Journalists (CNOG), to the provisions of the same MAR on investment recommendations (Resolution no. 20508 of June 28, 2018).
- Approval of the prospectus concerning the admission to trading of Triboo Spa ordinary shares on the MTA (Decision of June 26, 2018).
- The tripartite prospectus relating to the offer with options and admission to trading on the MTA of the ordinary shares of Prysmian Spa has been approved (decision of June 28, 2018).
- The base prospectus relating to the public bid programme and/or listing of bonds issued by Unicredit Spa has been approved (decision of June 26, 2018).
- The base prospectus relating to the public bid programme of bonds issued by Unipol Banca Spa has been approved (decision of June 28, 2018).
- The supplement to the base prospectus relating to the public bid programme and/or listing of bonds issued by Unione di Banche Italiane Spa has been approved (decision of June 28, 2018).
Registers and lists
- Precautionary suspension, for sixty days, of Domenico Penno from carrying out the activity of financial advisor authorised to perform door-to-door selling (Resolution no. 20470 of June 7, 2018).
CONSOB INFORMS (Rome Tribunal Registration no. 250 of 30/10/2013) Chief Editor: Manlio Pisu - Editorial board: Antonella Nibaldi (coordinator), Claudia Amadio, Riccardo Carriero, Luca Cecchini, Laura Ferri, 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.