ITALY Law and Practice Contributed by: Francesco Di Carlo and Filippo Raynaud, FIVERS Studio Legale e Tributario
4. Shareholders 4.1 Companies and Shareholders
The rules that govern the holding and conduct of shareholder meetings differ depending on the corpo - rate form and whether the company is listed or not listed. SPA In an SPA, a shareholder meeting may be “ordinary” or “extraordinary”, depending on the relevant subject matters. “Ordinary” meetings require lower quorums and are not in notarial form, whereas “extraordinary” meetings require higher quorums and must be in notarial form. Typically, the board of directors or the chairman (the board of statutory auditors, in case of inaction) call the meeting with a notice, that indicate the place and time of the meeting and the agenda. In a non-listed SPA, the notice may be sent by email or any other means to each shareholder at least eight days in advance or, alternatively, be published on an Official Publication (the Official Gazette) or at least one Newspaper at least 15 days in advance. A listed SPA is required to publish the notice at least 30 days in advance and post it on the company’s web - site (or the different period, as required for specific items on the agenda), together with a report explaining the items on the agenda. If so provided under the by-laws, the meeting may take place anywhere in Italy or even abroad, as well as by means of telecommunication. At the opening of the meeting, the chairperson is required to identify the attendees, their entitlement to participate (in person or by proxy), the reaching of the relevant quorum and the validity of the meeting. The chairperson appoints a secretary, that is tasked with the drafting of the minutes of the meeting. The chairperson conducts the meeting, leaves the floor to the managers that are called to explain the different items and/or shareholders that intend to intervene, puts the items on the vote and proclaims the result of each voting.
The relationship between the company and its share - holders is of contractual nature and is regulated in the relevant incorporation deed and by-laws as well as in mandatory provisions of Italian corporate law. Each SPA is required to keep and regularly update a record of the shareholders of a company, which is not publicly available and may be consulted by the share - holders. In addition, each non-listed SPA is required to file with the Company’s Registry a list of its share - holders on a yearly basis (within 30 days from the approval of the financial statements), which is publicly available. In an SRL, there is a record of the quota-holders, which is registered with the Companies’ Registry and publicly available. 4.2 Role of Shareholders In general, shareholders of an SPA are excluded from the management of the company (unless a sharehold - er is also appointed director or officer of the com - pany). However, the by-laws may provide that specific management decisions require an authorisation of the shareholders. In an SRL, quota-holders may be directly involved in the management of the company, as provided in the by-laws (eg, the by-laws may provide that the direc - tors must be quota-holders and/or that specific man - agement decisions are resolved upon by the quota- holders). 4.3 Shareholder Meetings The Italian civil code reserves certain decisions to the shareholder meeting (eg, the appointment of the board of directors, the board of statutory auditors and external auditors; changes to the by-laws; merger, demerger and liquidation proceedings). In both an SPA and an SRL a shareholder meeting is to be held at least on a yearly basis for the approval of the annual financial statements and when the term of office of the board of directors and board of statutory auditors has expired.
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