Shareholders’ meetings “again” by videoconference
By virtue of the Milleproroghe 2024 decree (converted into Law No. 18 of February 23, consequently published in the Official Gazette, No. 49/2024), the option of carrying out remote meetings of companies and associations was once again introduced, even when this option is not provided for in the bylaws.
As is well known, in force of the emergency legislation, it had been allowed by the legislator (for companies that make use of the meeting instrument for the approval of resolutions) that it was in any case permitted to hold the meeting by videoconference even where not expressly provided for in the bylaws. The law, in fact, requires that the videoconference mode be expressly provided for in the bylaws. With this legislative intervention, the possibility of holding meetings by videoconference (even where not provided for in the bylaws) has been extended until April 30, 2024.
In a nutshell, therefore, the legislative change allows corporations, cooperatives, associations and foundations:
- the carrying out of meetings by videoconference even where the latter mode has not been provided for in the bylaws;
- are subject, in any case, to the necessary modalities that are linked to videoconferencing such as, above all, the possibility that the chairman can identify the connected persons and ascertain their identity and legitimacy to participate;
- even where the bylaws provide for videoconferencing but with the need for the chairman and secretary to be in the same place, it is possible in any case to derogate from this provision if the meeting is held in totalitarian mode.
As already pointed out in our other newsletters on the subject, it is believed that the legislative provisions (from the emergency period onward) that allow in any case for the meeting to be held by videoconference can also extend to the meetings of boards of auditors and boards of directors.
DDL Capitals: new tools and opportunities for the growth of companies
The Italian Senate gave final approval on Feb. 27 to the bill (which was itself approved by the House with amendments on Feb. 7) containing measures to support the competitiveness of capital (so-called DDL Capitali).
This new legislation provides for profound changes both in the area of corporate law and in the area of investments for companies, with the clear intent of stimulating the growth of the Italian capital market: in this area, the legislature’s aim is to improve the competitiveness of Italian financial markets in support of growth, given that our country is still under-resourced in comparison with other more advanced economies in other countries.
These are the main innovations that we report with this newsletter, reserving more specific insights with subsequent contributions:
- Multiple-voting shares – provision has been made to amend Article 2351, paragraph 4, of the Civil Code, in the sense that multiple-voting shares may allow up to 10 votes (previously the maximum limit was 3 votes); in this sense, therefore, companies falling within the framework of the legislation in question may choose to provide for the issuance of multiple-voting shares up to a maximum of 10 votes; as already correctly pointed out by part of the doctrine, the introduction of multiple-voting shares, in any case, may entail the right of withdrawal for dissenting shareholders; with reference to companies whose shares are admitted to trading on the regulated market, however, the principle remains that the introduction (into the articles of association) of multiple-voting shares is not possible after listing (but if previously issued, multiple-voting shares are retained even after listing);
- Issuance of bonds – through the amendment of Article 2412 of the Civil Code, it is clarified that the issuance limits provided for in paragraphs 1 and 2 of the aforementioned article do not apply if the bonds are subscribed exclusively by professional investors, as permitted by the relevant issuance resolution; these professional investors, moreover, are no longer required to guarantee about the solvency of the issuing company in the event of subsequent transfer of the same bonds to non-professional investors;
- Shareholders’ agreements – the publicity obligations provided for in Article 2341 ter of the Civil Code are extended to issuers of shares admitted to trading on multilateral trading systems, and thus they have the obligation to communicate the shareholders’ agreements entered into to the company, as well as to declare them at the opening of each shareholders’ meeting; there is also the obligation to transcribe the declaration in the minutes of the shareholders’ meeting to be filed with the Companies Register;
- Simplified procedures for admission to listing – the DDL Capitals intended to facilitate access to listing also by virtue of the elimination of certain conditions for the same;
- Debt securities in Srl (limited liability companies in Italy) – an intervention was also made by amending Article 2483 of the Civil Code, by virtue of which debt securities that are purchased exclusively by professional investors do not oblige the latter to be liable for the solvency of the company vis-à-vis purchasers who are not professional investors, or vis-à-vis the shareholders of the same issuing company; this provision must be expressed – and is now required by law – among the conditions of issue and no waiver is allowed.
CORPORATE
Majorities for approving resolutions and clauses against deadlock situations
One of the most relevant issues in the area of corporations is that of resolution quorums in shareholders’ meetings. In particular, the Italian Supreme Court (“Corte di Cassazione”, court order No. 5429/2024) recently dealt with the case of a clause in the articles of association by which the favorable vote of shareholders representing at least 50 percent of the share capital was required. The Court referred to the (necessary) majority principle that such a clause can only be considered valid if there are no votes against it representing the remaining 50 percent. As is well known, in the absence of an effective majority that can enable the approval of a given resolution, the company may find itself in a deadlock situation, such that (as often happens in companies with two partners with equal shareholdings) it is not possible to continue, perhaps due to disagreements between the same partners, in the company’s activities and the consequent fulfillments required by law. In this sense, again in the wake of jurisprudence that has dealt with the question – indeed very frequent in practice – if the disagreement (or contrast) between the partners assumes a continuous and insuperable character, the cause of dissolution provided for by the law can be configured for “impossibility of functioning” or “continued inactivity of the shareholders’ meeting”: in short, it must not be a merely episodic or momentary contrast but one that has a now stable character, aimed at rendering the company incapable of making decisions. Against deadlock situations, specific statutory remedies may be provided to enable – in such cases – the deadlock to be overcome, since, as seen, any permanence of the deadlock may lead to a cause for dissolution.
Abuse of majority in resolutions of corporations
Shareholders’ meeting resolutions may be vitiated by conduct of the majority that, although in apparent compliance with corporate law in the area of shareholders’ meeting resolutions, has the clear purpose of achieving not the corporate interest but merely that of the majority shareholders. There is no rule in the Italian Civil Code that can be invoked to this effect, but it is a case law development that has formed over time. In particular, the areas where, normally, majority abuse can emerge are those of capital increase, non-distribution of profits, and directors’ compensation: in these three cases, in fact, the majority can “abuse” a resolution to achieve ends attributable to it that cannot be justified in the perspective of the prevailing corporate interest. The capital increase, for example, can be used to dilute the shareholding of minority shareholders, without the increase being really justified from the perspective of the company’s operations and special concrete needs; likewise, in the case of profit distribution, the majority’s decision to set aside profits, not justified by the company’s capitalization needs (again, for special concrete needs), can result in a clear abuse to the detriment of minority shareholders, who are deprived of these amounts. Recently, a case law ruling (on the matter of capital increase), moreover, has argued that where the minority shareholders have the economic capacity to subscribe to the increase, any refusal on their part would be the result of a free choice, and therefore could not constitute an abuse of majority. As is normal from the summary produced here, these are assessments that need specific case-by-case examination.
LIABILITY LEGISLATIVE DECREE 231/2001
Organizational model and its adequacy
The mere configurability on the part of a company’s top management of criminal liability for one of the “alleged crimes” is not sufficient to affirm the liability of the collective entity under Legislative Decree 231/2001. It has been criticized by many, since the early days of the entry into force of the relevant legislation, the presumed automatism between the commission of a crime in the company and the inadequacy of the organizational model in preventing it, a presumption often traced in some jurisprudential pronouncements. Recently in jurisprudence, however, there has been an overcoming of this presumption: it has been, in fact, clarified that in the go of suitability of the organizational model, the fact that a crime has actually been committed cannot be a decisive element; instead, if a crime is committed because the organizational model has proved incapable of preventing its commission, then the clause exempting the entity from liability (Art. 6 of Legislative Decree 231/2001) could never find application. The commission of the crime, therefore, is not an exhaustive element to prove that the model is not suitable: the crime risk is considered acceptable when the prevention system cannot be circumvented except fraudulently. The legislator, in fact, with the provision of the legislation in question, clearly intended to avoid punishing the entity according to a criterion of “strict liability.” By virtue of the considerations in question, therefore, the alleged “automatism” between the commission of the crime and the consequential (necessarily) unsuitability of the model is dropped, but a concrete assessment of the concrete suitability of the model for preventive purposes is required (thus demonstrating the company’s work to concretely prevent the commission of crimes under the legislation in question).
