Decreto Cura Italia - New provisions regulating shareholder meetings

The Decree – in light of the operational difficulties incurred by many companies as a result of the limitations imposed by the Italian Government to deal with the spread of the COVID-19 virus, and in order to reduce the gathering of people also during corporate meetings – includes specific provisions regulating the shareholders’ meetings of certain companies.

In particular, art. 106 of the Decree intervenes on two aspects: (i) on the terms for convening the shareholders’ meetings called to resolve upon the approval of the statutory financial statements; and (ii) on the concrete procedures for holding any shareholders’ meeting (also those requiring that the minutes are drafted by a notary).

However, it should be noted that the exceptions provided for in the Decree shall only apply with respect to the shareholders’ meetings convened by 31 July 2020 or by any later date, if the state of emergency in Italy relating to the COVID-19 pandemic persists.

1. Extension of the term for the approval of the 2019 statutory financial statements

With regard to the terms for convening the annual shareholders’ meeting called to resolve upon the approval of the statutory financial statements, pursuant to paragraph 1 of art. 106 of the Decree, which expressly derogates to articles 2364, paragraph 2 and 2478 bis of the Italian Civil Code or to any different provisions included in the companies’ by-laws, joint-stock companies are entitled to convene such shareholders’ meeting within a longer term of 180 days as of the end of the financial year.

As a rule, pursuant to articles 2364, paragraph 2 and 2478 bis of the Italian Civil Code, joint-stock companies are required to convene the annual shareholders’ meeting to resolve upon the approval of the statutory financial statements within the term provided for in their by-laws, which may not exceed 120 days as of the end of the financial year. However, such companies may convene said shareholders’ meeting within the longer term provided for in their by-laws, which, in any case, may not exceed 180 days as of the end of the financial year, only in the event that the relevant company has to approve the consolidated statutory financial statements, or if specific circumstances related to the company’s structure, or corporate scope justify said longer term.

Following the above mentioned paragraph 1 of art. 106 of the Decree, companies are now allowed to benefit from said longer term, with no necessity to justify such decision.

2. Shareholders’ meetings held by means of conference call

On the other hand, the following paragraphs of art. 106 of the Decree regulate the procedures for holding ordinary and extraordinary shareholders’ meetings, with a specific focus on how to exercise the voting rights and on how to attend such meetings. In particular, these paragraphs aim to simplify the holding of shareholders’ meetings in order to reduce the risk of transmission of the COVID-19.

2.1. Joint stock companies, cooperative companies (“società cooperative”) and mutual insurance companies (“mutue assicuratrici”) (art. 106, paragraph 2 of the Decree)

The shareholders of joint stock companies (S.p.A., S.a.p.a. and S.r.l.), cooperative companies and mutual insurance companies, even if otherwise provided for in their by-laws, are entitled to exercise their voting rights electronically or by correspondence, as well as to attend the shareholders’ meetings by means of telecommunications. However, these rights and the specific procedures for exercising them shall be expressly indicated in the notice of call of said meetings.

In addition, the above mentioned companies may decide that attendance to the shareholders’ meetings may occur only by means of telecommunications which guarantee the identification of the attendees, their attendance and the exercise of the voting rights, without, in any case, the need for the chairman, secretary or notary to be in the same place, if any of them is in attendance.

2.2. Shareholders’ resolutions of limited liability companies (S.r.l.) adopted by written consultation or by consent expressed in writing (art. 106, paragraph 3 of the Decree)

The shareholders’ resolutions of limited liability companies (S.r.l.) may be adopted by written consultation or by consent expressed in writing, also in derogation of art. 2479, paragraph 4 of the Italian Civil Code and of any different provisions included in the companies’ by-laws.

According to Assonime’s initial comments, this means that limited liability companies, as an alternative to shareholders’ meetings which require the physical attendance of the shareholders, may decide to resort to the written consultation or to the consent expressed in writing also when:

1. no provision is included in the companies’ by-laws in this respect; or
   
   
2. the shareholders’ resolution concerns amendments to the companies’ by-laws or the decision to carry out transactions which entail a substantial amendment to the companies’ corporate scope or to the rights of the shareholders or pertains to losses exceeding a third of the companies’ corporate capital; or
   
   
3. a qualified number of directors or shareholders’ requested that the resolution shall be adopted during a shareholders’ meeting which requires the physical attendance of the shareholders.

2.3. Listed joint stock companies, companies listed on a multilateral trading facility and companies whose shares are widely distributed to the public (art. 106, paragraphs 4 and 5 of the Decree)

Listed joint stock companies, companies listed on a multilateral trading facility and companies whose shares are widely distributed to the public may appoint the representative referred to in art. 135 undecies of Italian legislative decree No. 58, dated 24 February 1998 (“TUF”), in order to exercise their voting rights during the ordinary and extraordinary shareholders’ meetings, even if otherwise provided for in the by-laws of such companies. It is, however, necessary that the notice of call of said meetings expressly mentions the appointment of the representative and that it contains all information on how to grant the relevant voting proxy.

These companies are also entitled to indicate in the notice of call that the shareholders may attend the meetings only through the aforementioned representative, who may even be granted proxies and sub-delegations pursuant to art. 135 novies TUF, as an exception to the provisions of art. 135 undecies, paragraph 4 TUF.

In this respect, Assonime has clarified, on one hand that the remaining provisions of art. 135 undecies TUF shall apply to the representative; and, on the other hand, that the provisions of art. 106, paragraph 4 of the Decree may also apply to the bondholders’ meetings of companies which have issued listed bonds, in accordance with art. 2415, paragraph 3 of the Italian Civil Code.

2.4. Cooperative banks (“banche popolari”), cooperative credit banks (“banche di credito cooperativo”), cooperative companies (“società cooperative”) and mutual insurance companies (“mutue assicuratrici”) (art. 106, paragraph 6 of the Decree)

Cooperative banks, cooperative credit banks, cooperative companies and mutual insurance companies, apart from being entitled to benefit from the remote voting methods (i.e. electronically or by correspondence) and from their right to attend the shareholders’ meetings by means of telecommunications, which shall be expressly indicated in the notice of call, may also appoint the representative referred to in art. 135 undecies TUF. Such appointment may also be made in derogation of art. 150 bis, paragraph 2 bis of Italian legislative decree No. 385 dated 1 September 1993, art. 135 duodecies TUF and art. 2539, paragraph 1 of the Italian Civil Code, as well as of the provisions of the companies’ by-laws, which all provide for limits on the number of proxies that may be granted to one single individual.

It should be noted that the above mentioned companies may also indicate in the notice of call that the shareholders may attend the meetings only through the representative, who may not express a vote other than that indicated in the voting instructions, considering that the Decree expressly excludes the applicability of art. 135 undecies, paragraph 5 TUF.

Finally, the Decree clarifies that the proxy to the representative shall be granted at the latest by the second day preceding the date of the first call of the shareholders’ meeting.

Last reviewed: 20 March 2020