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Lesson 24 Joint-stock company (j.s.c.): categories of shares, bonds,…

- - - - it is thus possible that the by-laws permit the creation of shares:
        
        a) without voting rights;
        
        b) with voting rights limited to particular matters;
        
        c) with voting rights subject to the occurrence of particular conditions that are not merely potestative (e.g. if the company is the target of a hostile o.p.a.)
    - - the value of excluded or limited voting shares (including savings shares) may not exceed a total of more than half of the share capital. It follows that the minimum threshold to be able to exercise legal control of a company is 25.1% of the capital (in the event that only 50% of the capital has full voting rights).
    - - It is then possible to envisage further limitations that act, however, not on an objective level of the categories, but on a subjective level:
        
        1) in relation to the quantity of shares held, the voting right may be limited to a maximum measure;
        
        2) staggering of the voting right may be arranged.
        
        In other words, the articles of association may stipulate either that no shareholder exercises more than 5% of the voting rights (even if they have a shareholding with higher voting rights) or that the vote is attributed not proportionally to the size of the shareholding, but regressive.
    - - the legislator has chosen to introduce two forms of allocation to shares with more than one vote:
        
        shares with multiple voting rights (art. 2351, paragraph 4)
        
        and the increase in voting rights (art. 127-quinquies TUF).
  - - - Another traditional peculiarity is the complex group organization provided for by law, which goes well beyond the simple mechanism of the special shareholders' meeting pursuant to art. 2376 and is divided into:
        
        a) a special shareholders' meeting; -
        b) a common representative
        
        The special shareholders' meeting resolves:
        
        a) on the appointment and revocation of the common representative and the liability action against him;
        
        b) on the approval of resolutions passed by the company's shareholders' meeting which prejudice the rights of the category;
        
        c) on the establishment of a fund for expenses necessary to protect the common interests and on the related report; the fund is advanced by the company, which may have recourse to the profits due to the savings shareholders in excess of the minimum guaranteed;
        
        d) on the settlement of disputes with the company;
        
        e) on other items of common interest
- - - - indexed
        if the parameter is external
      - participating
        if the parameter is the performance of the company;
    - - convertible into shares
        the bondholder is given the faculty, in the times and ways predetermined in the regulations, to "convert" his credit into shares of the company that issued the bond (so called direct method) or of another company (so called indirect method).
      - convertible into warrants
        the bondholder, while remaining so, also has the right to subscribe or purchase shares of the issuing company or of another company.
  - - - This limit can be overcome in this cases:
        
        a) if the bonds are secured by a first-degree mortgage on real estate owned by the company, up to two thirds of the value of the real estate
        
        b) if the bonds issued in excess are intended for subscription by professional investors' subject to prudential supervision in accordance with special laws
        
        c) if the bonds are intended to be listed on regulated markets or multilateral trading systems
        
        d) whether the bonds give the right to purchase or subscribe shares
        
        e) when there are particular reasons affecting the national economy
  - - - early convertibility
      - adjustment of the exchange ratio
      - equalization to shareholders
- - - - assets intended for general creditors
        on the one hand, the creditors of the company cannot assert any rights on the dedicated asset or on the fruits or proceeds deriving from it, except for the part due to the company.
      - creditors of the intended assets
        on the other hand, towards creditors with title in obligations contracted in relation to the specific deal, the company is liable within the limits of the dedicated asset allocated to it (art. 2447-quinquies, paragraph 3).
      - it is required that accounting books be kept separate from the general ones and, on the other, that assets and relationships included in the dedicated assets are clearly indicated in the company's balance sheet. In addition, the administrators must prepare a separate report for each dedicated asset, attached to the financial statements