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LESSON 25: S.P.A. THE ASSEMBLY IN THE TRADITIONAL SYSTEM, DIRECTORS…

- - - - ordinary shareholders' meeting
        pursuant to art. 2364:
        
        1) approves the financial statements;
        
        2) appoints and revokes the directors; appoints the statutory auditors and the chairman of the board of statutory auditors and, when required, the person to whom the audit is delegated;
        
        3) determines the remuneration of directors and statutory auditors, if not established by the articles of association;
        
        4) resolves on the liability of directors and statutory auditors;
        
        5) resolves on the other objects attributed by law to the competence of the shareholders' meeting, as well as on any authorizations required by the by-laws for the performance of acts of the directors
        
        6) approve any regulations for the proceedings of the shareholders' meeting.
        
        The other objects attributed by the law mentioned in n. 5 are very numerous and it is superfluous to give here a complete list. However, it is necessary to remember: the destination of profits (art. 2433); the authorization to purchase own shares (art. 2357) and potentially dangerous purchases (art. 2343-bis).
      - The extraordinary shareholders meeting
        on the other hand, decides on:
        
        amendments to the by-laws;
        
        the appointment, replacement and powers of liquidators and on any other matter expressly attributed by law to its competence (art. 2365, paragraph 1)
        i.e. the provision of authorization to grant loans or provide guarantees for the purchase or subscription of its shares (art. 2358)
  - - - It is up to the chairman to verify the regularity of the constitution of the meeting, ascertain the identity and legitimacy of those present, direct the proceedings of the meeting and ascertain the results of voting (art. 2371).
    - - ORDINARY MEETING
        CONSTITUTIVE QUORUM
        The ordinary shareholders' meeting is duly constituted when at least half of the share capital is represented (calculated without taking into account the shares without voting rights at the meeting)
        DELIBERATIVE QUORUM
        and resolves by absolute majority, unless the articles of association require a higher majority (but unanimity is not possible).
        
        (If the law does not provide otherwise, shares who’s voting right, although existing, cannot be exercised at that meeting are counted for the CONSTITUTIVE quorum;
        such shares and those for which the voting right is not exercised following the shareholder's declaration to abstain due to a conflict of interest are not counted for the purposes of calculating the majority required for the approval of the resolution) DELIBERATIVE QUORUM
        
        IN SECOND CALL
        CONSTITUTIVE QUORUM
        whatever part of the capital represented by the participating shareholders.
        DELIBERATIVE QUORUM
        resolves by an absolute majority of the present capital, unless the by-laws require a higher majority (but not unanimity),
        except for the approval of the financial statements and the appointment and revocation of corporate offices, in order to avoid deadlock on matters that could cause the dissolution due to the impossibility of functioning of the meeting
      - EXTRAORDINARY MEETING
        
        of the closed-end companies deliberates with the favourable vote of more than half of the share capital, if the by-laws do not require a high majority; in this deliberative quorum is clearly implicit also the constitutive one.
        
        In open companies, on the other hand, the extraordinary shareholders' meeting is duly constituted when at least half of the share capital is represented or the highest percentage provided for by the by-laws and resolves with the favourable vote of at least two thirds of the share capital represented at the meeting
        
        Shares without the right to vote for that meeting and shares whose vote is not exercised due to a conflict of interest are counted for the purposes of the constitutive quorum, but not for the resolution quorum
        
        IN SECOND CALL
        CONSTITUTIVE QUORUM
        participation of more than one third of the share capital
        DELIBERATIVE QUORUM
        resolves with the favourable vote of at least two thirds of the capital represented at the meeting
    - - Not all shareholders may attend the meeting, but only those who have the right to vote at the meeting (art. 2370, paragraph 1). The elective corporate bodies must also participate in the meeting.
    - - occasional proxy
        Representation must be given in writing and the relevant documents must be kept by the company.
        The representative may only be replaced by someone expressly indicated in the proxy and, if the representation is given to a company, association, foundation or other collective body or institution, they may delegate only one of their employees or collaborators
        
        limits to the proxy
        
        1) neither the members of the company's administrative or control bodies nor its employees may be delegated;
        
        2) the same person may not represent more than 20 shareholders at the shareholders' meeting
      - "management proxy"
        is the one that, within the scope of the investment portfolio management service, can be issued by the client to the bank, the investment firm or the asset management company
      - solicited proxy
        (in listed companies)an institution exclusive to listed companies to gather around its proposals a number of memberships higher than the number that the codicistic discipline of representation would allow"
      - associative proxy (in listed companies)
    - - the illegality of the secret vote is inferred.
        The assembly normally deliberates on the basis of the majority principle, sometimes strengthened; However, for the appointment of social posts, the statute may establish special rules, such as list voting, cumulative voting or other rules that allow minority representation. Such methods are mandatory in listed companies to allow, for example, at least one member of the board of directors to be elected by the minority
    - - The minutes must indicate
        
        date of the meeting and, also as an annex, the identity of the participants and the capital represented by each;
        
        manner and result of the votes and allow, also in annex,
        
        identity of the participants and the
        
        capital represented by each;
        
        identification of members in favour, abstentions or dissenters
  - - - A) the failure to convene the assembly;
        
        B) the lack of the record;
        
        C) the impossibility or illegality of the object.
        
        the deliberation can be challenged within three years
    - - Deliberations taken not in accordance with the law or statute are annullable.
        Only those who possess lots of shares have the right to vote referring to the resolutions that represent, even jointly, one per thousand of the share capital in the S.P.A. open and 5% in the other
      - minority protection?
        The shareholders who do not reach the aforementioned capital threshold and who, as they do not have voting rights, are not entitled to propose the challenge are entitled to compensation for the damage caused to them by the non-compliance of the resolution with the law or the statute (art. ' 2377, paragraph 4): with the not simple burden, therefore, of having to prove both that they have suffered damage as a result of the invalidity of the resolution, and its amount;
        ninety days from the date of the resolution
    - - The appeal for nullity of the capital increase, the reduction of capital pursuant to Article 2445 or the issue of bonds can no longer be proposed after one hundred and eighty days have elapsed from the registration of the resolution in the register of companies or, in in case of failure to call, ninety days from the approval of the financial statements for the year in which the resolution was also partially executed (art. 2379-ter, paragraph 1).
      - In the s.p.a. when opened
        the following cannot be challenged:
        
        1) of the resolution to increase the share capital after it has been registered in the register of companies the attestation that the increase has also been partially executed
        
        2) the resolution to reduce the share capital pursuant to article 2445 or the issue of the bonds after the resolution has been partially executed
    - - The resolutions passed with the decisive vote of the shareholder who has pursued the exclusive purpose of obtaining a personal advantage to the detriment of the other shareholders (eg resolution of early dissolution to expel minority shareholders; resolution of capital increase to take advantage of a liquidity shortage of the minority and watering down its participation). is considered a vitiated resolution due to excess of power.
- - - - to approve a resolution, 50%+1 of the votes that are attending the meeting have to say YES
    - - let's go to the SECOND CALL
        
        Second Call
        
        Extraordinary Meeting
        
        there are enough votes attending the meeting?
        
        YES more then 1/3 of the share capital
        
        In open SPA approve al least 2/3 of the the capital represented at the meeting.
        
        1 more item...
        
        in the closed S.p.A. an 50%+1 of the share capital is sufficient if this is less than two thirds of the share capital present.
        
        1 more item...
        
        NO less then 1/3 of the share capital
        
        Let's go to the third call, and so on...
        
        1 more item...
        
        Ordinary Meeting
        
        there are enough votes attending the meeting?
        
        YES because whatever the portion of capital represented the meeting is held
        
        50 + 1 of the attending voites
        
        1 more item...
- - - - let's go to the SECOND CALL
    - - to approve a resolution, 50%+1 of the total votes have to say YES
      - in an OPEN COMPANY to approve a resolution 2/3 of the votes that are attending the meeting have to say YES