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Limited Liability Company (SPA) Lesson 22, The nullity of the s.p.a. -…

- - - - must be drawn up by public deed (art.2333) and it can be either a unilateral deed or a contract (art. 2328)
        
        In case of the contract there are: simultaneously constitution and public constitution
        
        simultaneously constitution art.2328
        
        the j.s.c. contract is concluded between subjects contextually present at the notary appointed to stipulate the deed of incorporation. It is an extremely lean modality of constitution, used in practice in almost all cases.
        
        The practice clearly prefers the method of simultaneous stipulation which, ultimately, requires the immediate payment of only 12,500 euros (25% of the minimum capit al of 50,000 euros).
        
        public constitution art. 2333
        
        Phases constitution for people without resources:
        
        a) draw up a program;
        
        b) after the authentication of the signatures and its deposit with a public notary, the program is made public;
        
        c) solicit payments of 25%;
        
        d) The first assembly
        
        e) sign the deed of incorporation (art. 2336) --> art. 2335 and 2330
        
        In order to proceed with the constitution, the conditions laid down in Article 2329 must be fulfilled.
    - - CONDITION
        
        a) full subscription of the entire share capital;
        
        b) payment of contributions (in kind art. 2342)
        
        c) authorizations and any otherconditions required by special laws in relation to the object of the company
      - PHASES:
        
        a) The notarial check (art. 2330) in case of no registration in 90 days (art. 2331;)
        
        b) Registration and its effects art. 2330 --> acquisition of legal personality art. 2331 par. 1 --> constitutive effect of registration issue :!?:
        
        c) Operations carried out before the registration art. 2331 --> is possible! The law provides unlimited and joint liability to third parties of those who have acted --> Once the company is registered, it is necessary to distinguish according to whether the operation were or were not necessary for the establishment of the company (see. pag. 24 translated book)
- - - - which are aimed at favouring or opposing a public purchase or exchange offer, including commitments not to adhere to an offer
        
        a) Have as their object the exercise of voting rights;
        
        b) Establish obligations of prior consultation for the exercise of voting rights;
        
        c) which place limits on the circulation of shares or financial instruments granting rights to purchase or subscribe to them;
        d) which provide for the concerted purchase of shares or financial instruments such as those listed above;
        
        e) which have as their object or effect the exercise, even jointly, of a dominant influence over the company with listed shares or the company controlling it;
        
        f) which are aimed at favouring or opposing a public purchase or exchange offer, including commitments not to adhere to an offer
        
        The TUF states that shareholders who intend to adhere to an o.p.a. or an o.p.s. pursuant to articles 106 or 107 (i.e. a total italian o.p.a. or a partial preventive o.p.a., see XXXIII 3.3.) can recede from the shareholder agreement to which they eventually adhere without need of any notice and also if it is a fixed-term agreement; the withdrawal produces effect only if the transfer of the shares is perfect (therefore if the o.p.a. is successful). in substance, the TUF suspends the obligatory constraint deriving from the shareholder agreement in slope of o.p.a., preventing it from being used to arm or the control of the company.
    - - Fixed-term shareholders' agreements (art.2341 bis)
        are aimed at stabilising the ownership structure or the governance of the company may not have more than five years of durability
        
        exercise of voting rights in joint stock companies or companies controlling them;
        
        set limits on the transfer of the relevant shares or shareholdings in companies controlling them
        
        have as their object or effect the exercise, also jointly or severally, of a dominant influence over such companies
      - Shareholders' agreements with indetermined time:
        --> when a joinventure is set up (Art. 2341-bis paragraph 3)
    - - in companies with shares widely distributed (open-end)
        
        the shareholders' agreements must be communicated to the company and declarete the opening of each shareholders' meeting.
        
        The declaration must be recorded in the minutes/verbal report and filed with the Companies' Register.
        
        Failure to make a declaration shall be punished with the prohibition to exercise the voting right relating to the syndicated shares and, if it is also exercised, with the cancellation of shareholders' meeting resolutions passed with their casting vote (Art. 2341-ter).
      - companies with listed shares
        (regulated by TUF 122)
        The Consolidated Law on Finance provides that the relevant shareholders' agreements must be in place:
        
        a) Fully communicated to Consob within five days from the stipulation.
        
        b) Published in the daily press withinten days, in accordance with the procedures established by Consob.
        
        c) Filed with the Companies' Register of the place where the company hasitsregistered office withinfifteen days;
        
        d) Communicated to the company
- - - - Unless otherwise stipulated in the deed of incorporation, the contributions must be made in cash and, except in the case of incorporation by unilateral deed, it is sufficient and necessary to pay 25% to a bank at the time of subscription (Art. 2342).
      - The recall of contributions
        The payment of the amount still owed by the company to complete the contributions is requested by the directors in accordance with the company's requirements. Until the previously issued shares have been fully paid up, no capital increases or convertible bonds may be carried out (Art. 2438(1) and 2420-bis(1)).
      - The defaulting partner
        art. 2344):
        
        a) publication of a warning in the OfficialGazette;
        
        b) from the moment he is in default, the shareholder cannot exercise the right to vote;
        
        c) fifteen days after publication, the administrators, if they do not deemit useful to act for the fulfilment, offer the shares to the other shareholders, in proportion to their shareholding, for a consideration not less than the contributions still due;
        
        d) in the absence of offers from the other shareholders, the administrators may have the shares sold at risk and on behalf of the shareholder, through a bank or an intermediary authorized for trading on regulated markets;
        
        e) in the absence of buyers, the administrators may declare the shareholder forfeited, with holding the sums collected, without prejudice to compensation for greater damages;
        
        f) unsold shares, if its cannot be put back into circulation within the financial year in which the forfeiture of the defaulting shareholder was pronounced, must be extinguished with the corresponding capital reduction.
      - Conferences still due and transfer of shares
        In case of transfer of shares not fully paid up, the seller is jointly and severally liable with the buyer for the payments still due for three years after the transfer has been recorded in the shareholders' register;
        the seller is liable only if the request to the current owner of the shares has remained unsuccessful
        (art. 2356).
    - - The deed of incorporation so permits, the shares may be released through contributions of assets in kind and receivables.
        In this case, the contributions must be made in full at the time of subscription
        (art. 2342, paragraph 3)
      - The estimate of contributions in kind
        
        a) the transferor must submit the sworn report of an expert appointed by the court in whose district the company's registered office is located.
        
        b) within one hundred and eighty days of the company's registration, the directors must check the evaluations contained in the report
        
        c) until the valuations have been checked, the shares corresponding to the contributions are inalienable and must remain deposited with the company;
        
        d) if it turns out that the value of the assets or receivables contributed was higher or lower within the limit of one fifth of the value for which the contribution was made, there are no consequences (without prejudice to the possible liability of the expert);
        
        e) if, on the other hand, it turns out that the value was more than one-fifth lower than the value for which the contribution was made, the company must proportionally reduce the share capital, cancelling the shares that are uncovered unless:
        . 1) the transferring shareholder pays the difference in cash;
        . 2) or the shareholder withdraws from the company obtaining the return of the contribution, if it is possible in whole or in part in kind, with corresponding cancellation of the shares and reductions in capital
      - Alternative criteria to the estimate of the judicial expert
        there are some cases where is not requested the estimate
        (Chap. 22 - par. 5.3.2 of the book)
    - - by the provisions of art. 2343-bis:
        
        a) the purchase by the company, for a consideration equal to or greater than tenth of the share capital, assets or credits of the promoters, founders, shareholders or directors, in the two-year period from the registration of the company in the register of companies, must be authorized by the ordinary shareholders' meeting.
        
        b) The alienant must present the sworn report of an expert designated by the court analogous to that provided for in art. 2343
        
        c) the directors must deposit the minutes of the meeting with the expert's report at the register of companies within thirty days of authorization.
    - - actions with ancillary services (art. 2345).
        The deed of incorporation may establish that the shareholder, in addition to the contribution, is also required to perform ancillary services not consisting of money; the act itself determines its content, duration, modalities and remuneration and establishes particular sanctions in the event of non-fulfillment. In this way the link between the quality of shareholder and the ancillary service iscreated: the subject is obliged to perform the service only if and for as long as he is a shareholder; conversely, the penalty for non-fulfillment of the accessory service can be exclusion from the company
        The shares to which the obligation of ancillary services is connected must be nominative and, precisely because the characteristics of the person required to perform them are not indifferent, they cannot be transferred without the consent of the directors.
        the modification is possible only with the consent of all the shareholders: it is the only case of unanimous decision provided for in the discipline of the s.p.a.