ITALY Law and Practice Contributed by: Maurizio Marullo, Giorgio Vagnoni, Claudia Marongiu and Pasquale Ambrosio Cepparulo, LAWP Studio Legale e Tributario
Contractual JV A contractual JV is established upon the signing of a JV agreement, setting forth the JV’s objectives and the respective rights and obligations of the co-venturers. Corporate JV Upon signing the JV agreement and on the closing date, the co-venturers, assuming any relevant condi - tions precedent have been satisfied, should incorpo - rate the JV. To this end the following activities may be required: • the holding of a meeting before a notary public to adopt several corporate resolutions, including the adoption of the bylaws and the appointment of the management body; • the execution of any agreed-upon capital contribu - tions to the JV vehicle, noting that the minimum capital varies depending on the selected company form: (i) S.r.l.: EUR10,000 (or as low as EUR1 for simplified S.r.l.); (ii) S.p.A: EUR50,000; • within 30 days of incorporation, the registration of the company with the competent Business Regis - ter (see 5.2 Disclosure Obligations ); and • depending on the nature of the business and the industries involved, the obtention of any licence and authorisation necessary to carry out the busi - ness. There are generally no restrictions on foreign entities participating in JVs, provided that reciprocity require - ments are met. However, specific sectors may require compliance with additional regulations or approvals. Once established, the JV can begin operations according to the agreed business plan, while ensur - ing compliance with applicable laws and regulations. 6. Core Terms of a JV Agreement 6.1 Drafting and Structure of the Agreement Contractual JV As outlined in 2.1 Typical JV Structures and 5.4 Legal Formation and Capital Requirements , the terms of a contractual JV are documented within the JV agree - ment entered into between the co-venturers, which typically regulates:
• co-venturer identification; • scope and roles (clarifying no partnership intent); • contribution obligations (financial, resources, tech, personnel); • decision-making procedures; • profit allocation; • IP licensing for JV development; • co-venturer liabilities (inter-se and third-party); As described in 2.1 Typical JV Structures and 5.4 Legal Formation and Capital Requirements , the essential terms of a corporate JV are documented within the JV agreement entered into between the co- venturers, which usually includes as annexes: • a shareholder agreement; • the draft of the company’s by-laws (reflecting, to the maximum extent permitted by the law, the pro - visions of the shareholders’ agreement); and • any potential commercial agreement to be entered into between the JV and the co-venturers (eg, manufacturing agreements, supply and distribution agreements and management service agreements). The JV agreement usually regulates the essential terms of the transaction, including, mutatis mutandis, provisions equal to those set out in the contractual JV agreement. • termination and consequences; and • applicable law and venue for disputes. Corporate JV The shareholders’ agreement and the JV’s by-laws usually regulate all the rights and obligations of each co-venturer as shareholder of the JV, and specifically: • procedures for securing additional funding and each shareholder’s obligation or right to contribute; • governance structure; • each co-venturer’s rights relating to the manage - ment of the company, including appointment rights and attribution of powers; • the decision-making procedures and voting thresh - olds for major decisions; • deadlocks and dispute resolution mechanism(s); • rules on transfer of shares, including limitations on transfer, right of first refusal, drag-along and tag- along mechanism;
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