HERA S.P.A. 
By Announcement regarding the obligatory public offering and exchange of all Acegas-Aps S.p.A. shares initiated by Hera S.p.A. compiled pursuant to article 102 of Legislative Decree 58 of 24 February 1998 as amended and article 37 of the Consob Regulation approved with Resolution 11971 of 14 May 1999 as amended.
Hera S.p.A. (the "Offeror" or "Hera") hereby announces that on 1 January 2013, pursuant to Article 102 of Legislative Decree 58 of 24 February 1998, as amended (the "TUF", Consolidated Finance Act), following the effectiveness of the merger as defined herein, the legal requirements for the conduct by the Offeror of an obligatory public offer of all the ordinary shares of Acegas-Aps S.p.A. ("AcegasAps" or the "Issuer") have been satisfied and, as announced to the market in particular on 25 July 2012, this offer will take place in the form of a purchase and exchange pursuant to Article 106, paragraphs 1 and 2-bis of the TUF (the "Offer").
For a detailed description and assessment of the Offer, please see the stock offering document which will be provided according to scheme 1 of Attachment 2A of the TUF implementation regulation concerning issuers, which was adopted by Consob Resolution 11971 of 14 May 1999, as amended and currently applicable (the "Issuers' Regulation"), and will be made available within the times and in the ways required by the law (the "Offering Document").
The Offering Document will also contain information regarding Hera and the ordinary Hera shares that will be offered in exchange as part of the Offer, for the purpose of Consob's issuance of the equivalency assessment pursuant to Article 34-ter, paragraph 1.j) and Article 57, paragraph 1.c) of the Issuers' Regulation.
Upon presentation to Consob of the Offering Document, as intended for publication, within 20 days from today, pursuant to Article 102, paragraph 3 of the TUF, the Offeror will apply to Consob for issuance of the aforementioned equivalency assessment.
The essential terms and elements of the Offer, as well as the purposes and the financing details provided for in the context of the Offer (the "Announcement"), are summarised below.
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LEGAL PREREQUISITES
The Offer is an obligatory public offer of the total ordinary shares of the Issuer, made pursuant to Articles 102 and 106, paragraphs 1 and 2-bis of the TUF, and follows the conclusion, on 1 January 2013, of the merger by incorporation of Acegas-Aps Holding S.r.l. into Hera pursuant to Articles 2501 et seq. of the Italian Civil Code (the "Merger").
Prior to the effective date of the Merger, Acegas-Aps Holding S.r.l. held a controlling interest in the Issuer, with approximately 62.691% of its share capital.
It is also noted that until the effective date of the Merger, the Municipality of Trieste and the Municipality of Padua held 50.1% and 49.9%, respectively, of the share capital of Acegas-Aps Holding S.r.l. -
ENTITIES PARTICIPATING IN THE OFFER
2.1 Offeror and controlling entities
The Offeror is Hera S.p.A., with registered offices located in Bologna at Viale Carlo Berti Pichat No. 2/4, registered with the Bologna Register of Companies under number 04245520376, which is also its tax identification and VAT number, and REA (Administrative Economic Repertoire) number BO-363550. Hera is an issuer of financial instruments listed on the Mercato Telematico Azionario ("MTA", Italian Electronic Stock Exchange) organised and managed by Borsa Italiana S.p.A. ("MTA")
On the date of this announcement, the Offeror's share capital, fully subscribed and paid up, amounts to Euro 1,258,394,405.00 and is divided into 1,258,394,405 ordinary shares with a nominal value of Euro 1.00 each.
No entity exercises control over Hera pursuant to Article 93 of the TUF.
On 10 December 2012, as provided for by the framework agreement signed on 25 July 2012 between Hera and Acegas-Aps Holding S.r.l., Hera stipulated with the Municipalities of Trieste and Padua a shareholders' agreement pursuant to Article 122 of the TUF. This agreement chiefly concerns the corporate governance arrangements of AcegasAPS, as described in the excerpt from the shareholders' agreement published according to the law on 12 December 2012 in the daily newspaper "Italia Oggi" and available for inspection on Consob's website at www.consob.it. Consequently, the Municipalities of Trieste and Padua, as parties to the shareholders' agreement pursuant to Article 101-bis, paragraphs 4, 4-bis and 4-ter of the TUF and Article 44-quater of the Issuers' Regulation, are considered to be persons acting together with the Offeror in relation to the Offer, as parties to the said shareholders' agreement.
At the date of this Announcement, the Municipalities of Trieste and Padua do not hold any shares in the Issuer.
2.2 Issuer
The Issuer is an Italian joint stock company, with registered offices in Trieste at Via del Teatro No. 5, registered with the Trieste Register of Companies under number 00930530324, which is also its tax identification and VAT number, and REA number 111554.
On the date of this Announcement, the Issuer share capital, fully subscribed and paid up, amounts to Euro 283,690,762.80 and is divided into 54,978,830 ordinary shares with a nominal value of Euro 5.16 each. On the date of this Announcement, the Issuer holds 118,883 treasury shares equalling approximately 0.216% of its share capital.
The shares of the Issuer are listed on the Mercato Telematico Azionario.
Following is the information regarding the main shareholders of the Issuer (with holdings equal to or exceeding 2% of the ordinary share capital), based on the information available on the date of this Announcement.Direct Shareholder % of share capital Hera S.p.A. 62.691% Fondazione Cassa di Risparmio di Trieste 7.500% Equiter S.p.A. 3.431% STAR FUND 2.365%
Thus, on the date of this Announcement, the Offeror exercises control over the Issuer, pursuant to Article 93 of the TUF, since it holds 62.691% of the Issuer's share capital. -
FINANCIAL INSTRUMENTS FORMING THE SUBJECT OF THE OFFER, AND CONSIDERATION
3.1 Financial Instruments
The Offer is for 20,393,006 ordinary shares of AcegasAps with a nominal value of Euro 5.16 each (individually, a "Share", and collectively, the "Shares"), representing approximately 37.092% of the Issuer's share capital.
The aforementioned 20,393,006 Shares represent all the subscribed and paid-up share capital of the Issuer with voting rights on the date of this Announcement, not including the 34,466,941 ordinary shares held by the Offeror, which represent approximately 62.691% of the Issuer's share capital, and the 118,883 treasury shares held by the Issuer, which represent approximately 0.216% of the share capital.
The Shares used for participation in the Offer must be freely transferable to the Offeror and free of any liens of any type and nature, whether real, obligatory and/or personal.
The Offer is aimed, without discrimination and under equal conditions, at all shareholders of the Issuer.
3.2 Consideration
For each Share used to participate in this Offer, an overall unit consideration will be payable by the Offeror as follows:
- a component represented by ordinary Hera shares, this component being equal to 4.15994709 ordinary Hera shares with a nominal value of Euro 1.00 each. These will be newly issued shares with dividend rights and the same features as the shares outstanding on the issue date (the "Hera Shares");
- a cash component equal to Euro 0.27342352.
The Shares purchased with the consideration paid by the Offeror will attribute to Hera a right to collect any dividends relating to the AcegasAps financial year ended 31 December 2012, as may be decided by the Issuer's Shareholders' Meeting at the time of approval of the relative financial statements. Similarly, the Hera shares delivered as part of the overall consideration, which have the same features as the outstanding shares, will grant to the participants in the Offer the right to collect any dividends that may be decided by the Hera Shareholders' Meeting at the time of approval of the financial statements for the year ended 31 December 2012.
With regard to the Hera Shares that the Offeror will offer in exchange, it is hereby noted that the Extraordinary Shareholders' Meeting of Hera held on 15 October 2012 approved a share capital increase, to be carried out in one or more steps and in several tranches paid separately, for the nominal amount of Euro 84,833,826.00, in addition to a share premium through the issuance of a maximum number of 84,833,826 ordinary Hera shares, with dividend rights and the same features as the shares outstanding on the issue date, with exclusion of the option right pursuant to Article 2441, paragraph 4, first sentence of the Italian Civil Code.
It is furthermore noted that:
- on 14 September 2012, Prof. Paolo Bastia, who was appointed by the Court of Bologna on 2 August 2012 pursuant to Article 2343 of the Italian Civil Code, issued a sworn statement regarding the value of the Shares comprising the Offer, pursuant to Articles 2440, paragraph 1 and 2343 of the Italian Civil Code;
- on 21 September 2012, the auditing firm PricewaterhouseCoopers S.p.A. issued its fairness opinion pursuant to the combined provisions of Article 2441, paragraph 4, first sentence and paragraph 6, of the Italian Civil Code and Article 158 of the TUF, concerning the report on the issuing of the Hera shares to be offered in exchange.
In the case of complete participation in the Offer, the Issuer's shareholders will receive a total of 84,833,826 Hera Shares and Hera's share capital after the Offer will consist of 1,343,228,231 ordinary shares with a nominal value of Euro 1.00 each, so that the Issuer's shareholders participating in the Offer will hold a total of approximately 6.316% of the Offeror's share capital after the Offer is completed.
It is furthermore noted that the Offeror will use its own equity to pay the maximum amount of consideration payable in cash of Euro 5,575,927.48 to the participants in the Offer.
In relation to the above, it is noted that, including in the light of the powers conferred on the President Tomaso Tommasi di Vignano by the Board of Directors of Hera on 17 December 2012, Hera need not take any further corporate measures to implement the Offer and thus the issuance of the Hera Shares that will take place on the Payment Date, as defined hereinafter. -
REASONS AND PURPOSE OF THE OFFER
The obligation to carry out the Offer as indicated above arises from the effectiveness of the Merger. The Offer aims to achieve delisting, which is partly motivated by the desire to increase the liquidity and free float of Hera's shares, as well as to optimise the costs payable for listing on the MTA (Mercato Telematico Azionario) of two companies operating in the same sectors and belonging to the same corporate group. -
INTENTION TO REMOVE THE SHARES FROM TRADING
5.1 Obligation to purchase pursuant to Article 108, paragraph 2 of the TUF
The Offer aims to remove the Issuer's shares from listing on the MTA. Consequently, if the outcome of the Offer results in the Offeror owning, during the period of participation, more than 90% but less than 95% of the share capital as a result of participation in the Offer and any purchases made outside the offer, the Offeror hereby declares its intention not to restore a sufficient free float to ensure the regular conduct of trading. In this case, the Offeror will comply with the obligation to purchase the remaining shares from the Issuer's shareholders who request this, pursuant to Article 108, paragraph 2 of the TUF.
5.2 Obligation to purchase pursuant to Article 108, paragraph 1 of the TUF and exercise of the right to purchase pursuant to Article 111 of the TUF
If, after completion of the Offer, the Offeror holds at least 95% of the Issuer's share capital as a result of participation in the offer and any purchases made outside the framework of the Offer pursuant to applicable laws during the participation period, the Offeror hereby declares its wish to exercise its right to purchase the remaining outstanding shares pursuant to Article 111 of the TUF (the "Purchase Right").
In exercising the Purchase Right, the Offeror will honour, towards the Issuer's shareholders that so request, the purchase obligation under Article 108, paragraph 1 of the TUF (the "Purchase Obligation pursuant to Article 108, paragraph 1 of the TUF"). The Offeror will therefore initiate a single procedure aimed at fulfilling the Purchase Obligation pursuant to Article 108, paragraph 1 of the TUF, while concurrently exercising the Purchase Right. -
CONDITIONS FOR THE VALIDITY OF THE OFFER
As the Offer is mandatory, it is not subject to any validity conditions and, in particular, it is not contingent upon reaching a minimum level of participation. -
DISCLOSURES OR AUTHORISATION APPLICATIONS REQUIRED BY THE APPLICABLE LAW
The Offer is not subject to any form of authorisation.
For completeness of information, it is noted that on 8 October 2012, the Autorità Garante della Concorrenza e del Mercato [Italian Anti-Trust Authority] approved the Merger. -
PARTICIPATION PERIOD AND POSSIBLE EXTENSION
Pursuant to Article 40 of the Issuers' Regulation, the participation period will be agreed with Borsa Italiana S.p.A. between a minimum of 15 and a maximum of 25 trading days, except in the event of an extension.
The date on which the Hera Shares will be issued and delivered to participants in the Offer, and on which the cash payment will be made, will be the fifth trading day following the closing date of the participation period for the Offer (the "Payment Date").
Since the Offer is being made by a person who already holds shares in the Issuer exceeding the 30% threshold provided for by Article 106, paragraph 1 of the TUF, after the close of the participation period and in any event not later than the day following the Payment Date, the participation period for the Offer may be extended by 5 trading days pursuant to Article 40-bis, paragraph 1.b) of the Issuers' Regulation. -
APPLICABILITY OF THE EXEMPTION PROVIDED FOR BY ARTICLE 101-BIS, PARAGRAPH 3 OF THE TUF
In consideration of the fact that Hera holds the majority of the voting rights that can be exercised at the AcegasAps Ordinary Shareholders' Meeting, the exemption provided for by Article 101-bis, paragraph 3 of the TUF applies. Consequently, Article 102, paragraph 2 and Article 103 paragraph 3-bis of the TUF and any other provision of the TUF that imposes specific requirements for information to be provided to employees and their representatives by the Offeror or the issuing company are not applicable. -
OFFER MARKETS
This Offer is made in Italy exclusively, since the shares are listed only on the MTA, and is aimed, under equal conditions, at all holders of ordinary shares of the Issuer.
The Offer will not be made directly or indirectly in the United States, Australia, Canada, Japan or any other country in which this Offer is not allowed without the authorisation of the competent authorities.
Participation in the Offer by individuals residing in countries other than Italy may be subject to specific obligations or restrictions imposed by laws and regulations. The recipients of the Offer are entirely responsible for checking the existence and applicability of such provisions with their advisors and for complying with the same prior to participating in the Offer. -
WEBSITE FOR THE PUBLICATION OF ANNOUNCEMENTS AND DOCUMENTS RELATING TO THE OFFER
Announcements and all documents relating to the Offer will be available on the Issuer's website www.gruppo.acegas-aps.it, as well as from the registered offices of the Issuer and the Offeror and on the Offeror's website www.gruppohera.it.
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