L’o.p.a. obbligatoria per le società ammesse all’AIM Italia

The mandatory bid rule does not concern companies listed on multilateral trading facilities. Nevertheless, the Aim Italia issuer regulation by Borsa Italiana makes the MBR applicable to the listed companies providing that: (i) companies have to amend their articles of association in order to be admitted to trading on the AIM Italia, introducing a clause that recalls art. 106 and 109 t.u.f.; (ii) a board of Arbitrators, named “Panel”, supervises the bid process and adjudicates the controversies. Therefore, the MBR is implemented through contract (issuer regulation and articles of association). This paper aims at approaching critically the “law making” process of the MBR for companies listed on the AIM, the strength and weaknesses of the implementation through contract of a statutory rule, and the role of the Panel. The analysis assesses that the introduction of the rule depends on a distributive conflict between industrial and controlling shareholders on the one side, and minority (institutio- nal) shareholders on the other. Furthermore, it considers that the rule does not match perfectly the boundaries of the statutory MBR and is not always adequate to repress violations and abuses by bidders and majority shareholders. Finally, the material and historical conditions for the success of the UK Takeover Panel lack in the Italian context. Therefore the contractual MBR points towards a general way to distribute the returns on the sale of control, but is inadequate to avoid elusions.