For example, the percentage of 10% (33% for limited liability companies) for the right of shareholders to obtain the convening of the Meeting (art. 2367); Article 2479 of the Italian Civil Code; the percentage of 20% (10% for limited liability companies) in order to prevent the waiver or settlement of the action for damages against the managers (Article 2393, sixth paragraph); Article 2476, fifth paragraph, Italian Civil Code; the percentage of 20% for the action for liability brought by the shareholder against the directors (Art. 2393-bis, BGB). Summary: Article 44 of Decree-Law No. 76 of 16 July 2020 (the “Simplification Decree”) provides that, by 30 June 2021, capital increases of public limited companies (società per azioni), limited partnerships by shares (società in accomandita per azioni) and limited liability companies (società a responsabilità limitata) may be authorized with the agreement of the majority of the share capital represented at the general meeting, provided that at least half of the share capital is available, even if the statutes prevail over higher majorities. In the shareholders` agreement, it is necessary to examine whether there are clauses obliging the shareholders, as contracting parties, to authorise capital increases by a qualified majority, that is to say, higher than what is prescribed by law. Or if the agreement refers to a statutory text (attached or by specific reference) that provides for such a majority, so that compliance with the qualified majority can be considered an obligation for the parties to the shareholders` agreement. In the absence of a shareholders` agreement obliging the shareholders to respect a qualified majority to approve the capital increase, the minority shareholder may challenge the decision to increase the capital for abuse of the majority only if the decision is not justified in the interest of the company and if the voice of the majority shareholder pursues a personal interest contrary to the interest of the company. or where it is an instrument of fraudulent activities of majority shareholders aimed at violating the rights of minority shareholders.
A tight leak and protection certainly insufficient. Qualified majorities above the law to allow capital increases are a fundamental protection for minority shareholders (and investors). They are often introduced in the articles of association: when the company is created with several partners, in the context of aggregation operations, investment transactions, private equity and venture capital. The rule has a considerable impact on the position of minority shareholders (and investors) of unlisted Italian companies, whose protection is often (also) entrusted to statutory clauses, which establish qualified majorities to authorise capital increases. (c) in the case of listed companies, represents a two-thirds majority of the share capital at the General Meeting (Art. 2368(2) and Art. 2369(3) BGB). In order to assess the situation and protection of the minority shareholder, it is necessary to examine the shareholders` agreement in force between the shareholders. The existence of a shareholders` agreement will be almost certain for private equity or venture capital transactions, or by other professional investors. But apart from these cases, there are many companies, especially among small and medium-sized enterprises, where relations between shareholders are governed exclusively by the articles of association. In this case, the shareholders` agreement protects the minority shareholder(s), since Article 44 of the simplification decree does not provide for a derogation from the clauses of the shareholders` agreement. The rule has a considerable impact on the position of minority shareholders (and investors) in unlisted Italian companies.
It can be the subject of strong criticism, in particular because it allows derogations from the higher majorities set by the statutes, thus affecting the ongoing relations and the governance agreed between shareholders and expressed in the statutes. . . .