The Notarial Council of Milan issued new guidelines on corporate issues and namely the following. Guideline No. 208/2023, which under Articles 2441 and 2481-bis of the Italian Civil Code refers to the right of option and right of pre-emption over unsubscribed shares in the event of a capital increase when several share categories are present. The guideline states that such a capital increase, with or without pre-emptive rights for the benefit of any share category, does not entail any prejudice to such a category, provided that an assessment is made as to whether, in the case in point, the specific content of the rights of each category of shares/quotas may give rise to a prejudice of one or more categories requiring approval pursuant to Article 2376 of the Italian Civil Code. Moreover, those by-law clauses are declared lawful which state that (a) approval by the category shareholders' meeting is mandatory to resolve on any proportional or non-proportional capital increase, or to resolve on any capital increase to issue new shares/quotas in a non-proportional manner, with or without the exclusion of any pre-emptive rights; (b) any capital increase must consist of a number of new shares/quotas proportional to the number of shares/quotas of each existing class. Approval by the category shareholders' meeting is mandatory to amend such clauses. Lastly, under Guideline Nos. 297 and 208 of 2023, those by-law clauses are declared lawful that exclude the need for approval by the category shareholders' meeting in the event of (a) any non-proportional capital increase with or without the exclusion of any pre-emptive rights, or (b) certain cases of non-proportional capital increase.
riginally published July 2023
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
