SHARE COMPANY

The share company (S.p.A.) is regulated by articles 2325-2451 civil code.

The main features of this company type are limitation of shareholders’ responsibility within subscribed share capital and the paid in capital represented by shares.

There are two ways for subscription of shares:

• simultaneous (normally adopted)), when the incorporation takes place in front of the notary public and with the presence of all founder shareholders;
• public subscription, with which the sponsors draw a program in which are contained the main characteristics of the company. Those participating to the initiative subscribe the shares and pay 25% of the paid in capital. Only when the subscription of all the shares is completed, the meeting of the subscribers is called in order to sign the incorporation deed.

It is possible to establish an S.p.A. with a sole shareholder.

The conditions for the incorporation of the S.p.A., as provided for by article 2329 civil code, are:

• Subscription of the share capital (at least 120.000 €);
• Payment of at least 25% of the paid in share capital to be deposited at a bank;
• In-kind contribution to share capital;
• Public authorizations prescribed by specific laws, depending from the company purpose;
• Enrollment of the company to the local Register of Enterprises.

L’atto costitutivo, ai sensi dell’art. 2328 c.c., deve contenere:

• the surname and the name or the company name, the date and place of birth or the Country of incorporation, the domicile or the legal head office, the citizenship of the shareholders and of sponsors, and the number of shares assigned to each of them;
• the name and the municipality where it is located the company head office and eventual secondary offices;
• the activity representing the company object;
• the amount of the subscribed share capital and of the paid in share capital;
• the number and the eventual face value of the shares, their type and the rules governing their circulation;
• the value assigned to credits and in-kind contribution to share capita;
• the rules governing the distribution of dividends;
• benefits eventually recognized to sponsors or founder shareholders;
• the type of administration adopted, the number of directors and the powers granted to them, showing which are legal representative of the company;
• the number of components of the board of statutory auditors;
• the appointment of the first directors and auditors;
• the total amount of expenses – at least rough – for the incorporation of the company, to be charged to the company;
• the duration of the company, or, if the company is established for an undetermined duration, the period of time (in any case not exceeding one year) after which the shareholder can withdraw from the company.

Within twenty days from the notary deed, the notary public and the directors are obliged to deposit the incorporation deed at the Register of Enterprises, together with the other required compulsory documents.

The shares can assume the following types:

• common stocks: they grant right to receive dividends and the distribution of the remaining assets in case of liquidation; the voting right in shareholders’ meeting; the option right in case of capital increase;
• preferred stocks: they grant a preference in the distribution of dividends or in the restitution of capital in the liquidation of the company; the owners of preferred stocks have voting right in the shareholders’ meeting;
• saving stocks: they can be issued only by companies listed on the Stock market and within the limit of 50% of the share capital, they do not grant voting right but they grant minimum annual dividends equal to 5% of their face value and/or in any case of 2% more than dividends granted to common stocks;
• other stocks (other preferred stocks, reserved to employees, stock requiring specific services to be rendered, etc.).

The S.p.A.’s deliberative bodies are:

1) The shareholders’ meeting, both general (in which all shareholders have right to intervene) and special shareholders’ meeting (in which only specific categories of shareholders can intervene). It can be:

• ordinary, which is competent for the annual financial statement approval, the appointment and revocation of directors and statutory auditors and on their compensation, on the claim for responsibility of directors and on the other subjects assigned to the shareholders’ meeting competence by the law and by the company By-laws;
• extraordinary, which resolves about modification of company By-laws, on the issue of loans convertible into shares and on other specific items fixed by the law.

The shareholders’ meeting is normally called by the Board of Directors. Also the Board of Statutory auditors or the Court are obliged to call the shareholders’ meeting in some specific cases fixed by the law.

2) The directors (sole director, Board of directors): they have the power of administration of the company and they legally represent the company against third parties. As provided for by article 2380 bis civil code, directors can be people different from shareholders; if a Board of Directors is appointed, the By-laws states the numbers, fixed or variable, of its members, in absence of specification the shareholders meeting resolves about their number. Art. 2382 civil code states the cases in which it is not possible to be appointed director. The appointment of directors is reserved to shareholders’ meeting, except for first directors which are appointed in the incorporation deed, they have a duration of three years and they can be re-confirmed, unless differently provided for by company By-laws; within thirty days from the appointment, the names of the directors must be communicated to the local Register of Enterprises. They can be revoked in any time, but, except cases of just cause, they have title to be refunded of damages suffered. The termination of directors becomes effective when they are replaced by new directors. The directors have, among others, the administration of the company, they call the shareholders’ meeting, they prepare the draft annual financial statements to be approved by the shareholders’ meeting, they implement shareholders’ meeting resolutions, they are responsible for keeping compulsory accounting books and they represent the company against third parties.

3) The statutory auditors: the Board of Statutory Auditos must verify the application of the law and of company By-laws and that the company is properly managed. In some cases, they are reponsible also for accounting auditing.

The S.p.A. is terminated for clauses provided in article 2484 civil code and for bankruptcy procedures.

To request a not binding work proposal for the incorporation of a Share Company, please send an email to the address info@studioariotto.it or fax number +39 02 4817482.