Solo gli stranieri combattono per l'azionista - gz
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By: GZ on Venerdì 30 Maggio 2003 16:13
Secondo i commentatori inglesi su Edison e su Olivetti-Telecom, su Ifil e su SAI-Fondiaria gli azionisti di minoranza sono stati vittime di abusi. Secondo i fondi e i commentatori italiani, mah.. chissà.... abbiamo altro a cui pensare.
Ci sono ora:
i) cause legali ora intentate da UBS, che ha il 70% delle ^Edison#^ risparmio e ha chiesto 150 milioni di euro di danni ,
ii) i fondi esteri ABP, DWS, Fidelity, Morley, Schroder Investment Management e TIAA-Cref che assieme al famoso fondo rompi-scatole Liverpool hanno scritto la lettera aperta contro la fusione ^Olivetti#^-^Telecom#^ e attaccato Tronchetti Provera all'assemblea degli azionisti la settimana scorsa. E cercano in tribunale di avere un ingiunzione per conflitto di interessi contro Tronchetti dopo averne appena perso una.
iii) C'è K-Capital che ha piantato un altra grana contro ^IFI#^-Ifil per il prezzo alto che il gruppo Agnelli ha fatto pagare a IFIL nel trsferirgli il grosso di Ifi un mese e mezzo fa.
iv) ci sono SAI e ^Fondiaria#^ che a fine 2002 con SAI e i suoi alleati, incluso Mediobanca avevano oltre il 30% di Fondiaria e volevano aggirare la legge italiana che sopra il 30% impone l'OPA sul 100% del capitale a beneficio di tutti gli azionisti. E a SAI e alleati è stato consentito che votassero tutti assieme per imporre la fusione con la SAI della famiglia Ligresti senza fare nessuna OPA su Fondiaria. Che infatti era crollata in borsa. Dopo qualche mese anche l'Anti-Trust si è accordo che erano tutti d'accordo e il solito fondo Liverpool hanno vinto in tribunale una sentenza che diceva che erano stati danneggiati. Allora hanno fatto causa alla Consob (che aveva fatto finta di niente) per danni e non li hanno avuti. Ora questi fondi esteri fanno causa a SAI e soci.
In tutti questi casi chi solleva la grana e combatte in tribunale e in assemblea sono solo i fondi anglo-sassoni. Di fondi e banche italiane ne vedi pochi.
Il motivo per cui la borsa in Italia in media NON è stato un investimento che ha fatto guadagnare è, in parte, che le istituzioni italiane come Consob e tribunali non funzionano e che i fondi comuni e le banche italiane che hanno in mano azioni tirano a campare.
Come investimento, per l'investitore medio, mettere il grosso dei propri sudati quattrini in prevalenza in azioni italiane è patriottico, ma non ha senso logico. Investite in modo GLOBALE, il mondo è grande, investite all'ESTERO.
(ovvio che se uno invece riceve tramite amici e clienti soffiate su titoli italiani o è abile nella speculazione rapida può sgamarla anche a piazza affari)
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Author: Hugo Dixon and Camilla Palladino
Italy's minority shareholders get raw deals
The outpouring of rage by minority investors in Telecom Italia has grabbed most of the headlines. Shareholders are complaining that the terms of the proposed merger between TI and Olivetti short-changes them. But this is not the only case. Dissident shareholders in Edison, the electricity group, are suing the company for damages following a merger with Italenergia last year. And an angry shareholder is on the point of suing the Agnellis for their rough treatment of minority investors in a shuffle of assets between two of their holding companies.
The opposition to such abuse is mounting. Hedge funds - such as Liverpool, K Capital and arbitrageurs from UBS - are in the vanguard. But big long-only funds have also been spurred into action. ABP, DWS, Fidelity, Morley, Schroder Investment Management and TIAA-Cref are among the institutions that have put their names to an open letter complaining about the TI/Olivetti merger and urging other shareholders to defend their rights.
But there is a big absence in the opposition. Local Italian investors are notable for their silence. Not a single one put its name to the TI open letter. Why? The main theory is that Italy is such a cosy club - with a web of financial and social connections between the big financial and industrial firms - that nobody wants to rock the boat by complaining in public.
Meanwhile, a big part of the reason why Italy is such a fertile ground for abuse is that so many Italian companies are ruled by dynasties - such as the Agnellis, the Benettons and the Pirellis. One consequence is that many notionally public companies still have the feel of private fiefdoms. Another stems from the fact that these families typically try to control as big an empire as possible with the minimum amount of capital - a system dubbed "capitalism without capital". Italian controlling shareholders are pushed to find creative ways to maintain their grip.
Add in the fact that other shareholders have historically been half-hearted about exercising their votes and that regulators and courts lack bite - and the outlook for shareholder activism doesn't look terribly good.
Minority abuse comes in many different forms. But four main themes stand out: holding company mergers, intra-group asset sales, concert parties and unfair treatment of savings shareholders.
Chinese box magic
Heavily indebted holding companies are one of the mechanisms used by Italian dynasties to control vast empires with small amounts of equity. Often there are a series of such "Chinese boxes" - one on top of another. But what happens when the debt in the holding company gets too much to bear? You just merge the holding company with the industrial group that it controls in order to get access to the subsidiary's healthy cash flows.
The snag is that the merger ends up diluting the controlling shareholders. Hence, there is a huge temptation to try to fix the terms of the deal in such a way that the controlling shareholders don't lose too much control. And because the controlling shareholders control both companies, they are in a good position to set the terms in a way that favours their own interests.
This is precisely the complaint with TI/Olivetti. Marco Tronchetti Provera, the Pirelli boss, controls both companies. At the time the deal was announced in March, breakingviews estimated the value transfer at E2.9bn. Since then, share prices have rebounded making the deal less bad for TI minority shareholders. On Friday, the value transfer had shrunk to about E200m on BV's calculations.
But TI/Olivetti isn't the only example of this type of scheme. Edison's merger last year with Italenergia, its leveraged holding company, was in many ways a precursor. In this case, the Agnelli family and its allies were calling the shots. Again, the plan was to gain access to a real company's cash flows to service a box company's debt. But if the Agnellis had merged the holding company with Edison using the power group's slumped E6.8bn market capitalisation at the time, they would have been massively diluted. They would have ended up giving away 48% of the assets lovingly assembled to Edison's minority investors.
The answer to the conundrum? The Agnellis simply nudged up the value of the underlying asset - on the grounds that Edison was undervalued by the stock market. Accordingly, the merger terms meant that minority shareholders only got 18% of the merged company. At the time, BV estimated the damage to minority shareholders at E360m. Adding insult to injury, Edison then raised capital at a price much lower than the Agnellis had used to justify the merger terms.
Edison's minority shareholders screamed blue murder. But the merger still went ahead. Even so, the battle isn't finished. UBS, which owns 70% of Edison's savings shares, is suing for E150m in damages. Other shareholders are launching a class action too.
The asset shuffle
Another type of potential abuse is selling assets from one controlled company to another. The pitfalls are clear, as the same party is on both sides of the transaction.
This is the heart of the debate over IFI, one of the holding companies through which the Agnelli family controls Fiat. It recently sold its stake in the ailing conglomerate to IFIL, another Agnelli-controlled holding company. K-Capital, a Boston-based hedge fund which owns a large minority stake in IFIL, is launching an action on the basis of conflict of interest.
The hedge fund argues that IFIL's risk profile will be significantly altered when it owns 30% of Fiat's capital. K-Capital also reckons the price is unfair. The E1bn that IFIL is paying its parent may be the average six-month trading price. But owing to Fiat's inexorable slide, that still represented a premium on market prices when the deal was announced. Moreover, Fiat was downgraded to junk the day following this announcement, and its shares lost up to 20% of their value.
The question is: would IFIL have agreed to the deal had it not been controlled by IFI? Recounting the votes and eliminating those cast by IFI suggests the answer is no. According to K Capital, only 56% of the shareholders present - excluding IFI - voted for the transaction, whereas it takes 67% to ram this sort of transaction through.
A similar sort of egregious asset transfer almost occurred in an earlier battle over Telecom Italia in 1999. At the time, the group was controlled by Roberto Colaninno, via a shell company called Tecnost. He tried to transfer Telecom Italia Mobile, TI's cash-generative mobile subsidiary, to Tecnost. The terms of the transaction were at the time described by one of the authors of this article as "daylight robbery". After vociferous opposition, the transaction was dropped.
Dis-Concert Parties
Unsurprisingly, controlling a company is very valuable in Italy. However, there's a pitfall. Italian law says that should an investor build up a stake larger than 30% - the watermark for control - it has to make a mandatory takeover offer to the rest of the shareholders. Worse, the price for such an offer is fixed as the average between the six-month trading price and the highest price paid for shares in the controlling stake. For stakeholders carrying out private sweetheart deals, that can get very expensive.
So the name of the game is trying to get round the takeover laws. Take the insurance bunfight between SAI and Fondiaria last year. SAI and its allies, including Mediobanca, between them owned over 30% of Fondiaria. The agreement between SAI and the white knights it had got to take the shares off it were pretty blatant, down to put and call options allowing SAI to repossess the shares. And Mediobanca, the Milanese investment bank that sits at the centre of many Italian webs, had masterminded the whole operation. Even so, SAI and allies were allowed to vote their Fondiaria shares to push through a merger unfavourable to Fondiaria shareholders. Consob, the Italian stock market regulator, didn't find any evidence of a concert party.
Shortly afterwards, the Italian antitrust authorities seized information which backed up the claim that there was a concert party. Minority shareholders, led by Liverpool, won a court case where Consob had to admit that its lenient judgement on the concert party had been wrong. The snag is that by that time the egg was so scrambled that it was couldn't be unscrambled. Shareholders sued Consob for damages. But that failed. Now they are thinking of suing Mediobanca, SAI and their allies.
No savings' grace
Savings shareholders are often on the receiving of raw treatment in Italy. Ordinary minority shareholders at least get a vote. Savings shareholders don't get a vote at all. - except in certain exceptional circumstances.
But occasionally, they do manage to defend their interests. Take Banco di Napoli - where two years ago the savers were left hanging after an offer was made only for the ordinary shares by SanPaolo IMI. But the Banco di Napoli savers were so noisy that SanPaolo eventually bought them out.
Savers have also figured large in most of the skirmishes over TI in recent years. They kicked up a fuss at the time of the Tecnost plan (see above). They also complained loudly when Colaninno tried to get them to pay a fat premium in order to get enfranchised. That scheme collapsed after a share price trigger that was part of the plan was never hit.
The TI savers are on the warpath again - in opposing Tronchetti's scheme. They have called their own meeting to object to the deal in June. But it is unclear yet whether they will get anywhere.
Toothless watchdog
Minority shareholders - especially foreigners - may have become much more active in seeking to protect their rights. And they have had some successes. But compared to shareholders in other countries, they are fighting an uphill battle.
The lack of support from local investors is a big handicap. Quite apart from the fact that it reduces their voting strength, it means that the foreign investors' opposition can too easily be branded as the work of hedge funds and arbitrageurs. That matters in the public relations battle. So long as Italian industrialists think that their home base is solid, they won't be too bothered.
That is not to say that complaining has no impact. One of the most effective forms of action has been to boycott the investment banks that bless these transactions. Many investors funds threatened to stop trading with Goldman Sachs because it has produced a fairness opinion on the TI/Olivetti merger. Goldman was deeply shocked by the opposition, according to people familiar with the situation. In earlier TI fights, investors threatened boycotts of Lehman Brothers, the group's adviser at the time.
Appealing to the referee also doesn't seem to get very far. Consob doesn't have very strong investigative and enforcement powers - and it doesn't seem inclined to use those powers that it does possess aggressively. It is like a toothless watchdog that doesn't even like barking.
Not surprisingly, shareholders have been driven to look to other regulators for redress. In the SAI/Fondiaria case, they got much more out of the anti-trust authorities. With TI/Olivetti, the dissidents argued that Olivetti should have been forced to make a proper takeover of TI rather than a merger on the grounds that Olimpia, yet another Chinese box, owned more than 30% of Olivetti. Consob has rejected that argument. The dissidents now seem to be placing more hope in the US SEC for some help by focussing on the specific position of savings shareholders in the US. It remains to be seen if the SEC picks up the issue.
Taking action in the courts also doesn't get very far - or, at least, not very fast. The Italian courts have also rejected the TI shareholders' call for an injunction to stop Olivetti voting its controlling stake in favour of the merger. The courts are prepared to consider issues of conflict of interest - but only after the event rather than in a preemptive manner. The TI/Olivetti and IFI/IFIL mergers may yet be challenged in court on these grounds. But if there is any redress, it may take a long time. And, by then, most observers will have forgotten what the whole fuss was about.