Company Law

Wednesday, 14th November 2012

SERAFINO Matteo Luca, Università degli Studi di Parma – Dipartimento di Economia SAIA Angelo, Università degli Studi Milano Bicocca – Facoltà di Economia

MARINO Leonardo , Università degli Studi di Parma – Dipartimento di Economia

1.UNLIMITED LIABILITY COMPANIES

2.LIMITED LIABILITY COMPANIES

A. Les Sociétés des personnes (#)

• Snc (Société en nom collectif)

• Scs (Société en commandite simple)

A. Società di persone (#)

• Snc (Société in nome collettivo)

• Sas (Società in accomandita semplice)

INTRODUCTION

A. Les Sociétés des Capitaux (*)

• Sa (Société Anonyme)

• Sas (Société par actions simplifiée)

• Sasu (Société par actions unipersonnelle)

• Sca (Société en commandite par actions)

B. Les Sociétés à responsabilité limitée

• Sarl (Société à responsabilité limitée)

• Eurl (Enterprise unipersonnelle à responsabilité limitée)

A. Società di Capitali (*)

• Spa (Società per azioni)

• Sapa (Società in accomandita per azioni)

B. Società a responsabilità limitata

• Srl (Società a responsabilità limitata)

• Srls (Società a responsabilità limitata semplificata)

(*) Join-stock companies (*) Join-stock companies

(#) Partnerships (#) Partnerships

(#) Partnerships


• Snc (Société en nom collectif)


• Snc (Società in nome collettivo)

Share Capital: there is not a minimum amount fixed by law;

Number of partners: minimum 2 without maximum;

Partners’ responsibility: jointly and severally liable for the company obligations;

Capital Injections: cash injection, contribution in kind;

contribution in industry, generally not included in the share capital;

Management: if nothing is stated in the statute of the

company all the partners are managers; Otherwise, can be either nominated at the beginning in the statute of the company (STATUTORY MANAGER)or later in a meeting of the General Assembly (NON STATUTORY MANAGER). Unanimous vote, except contrary clause. There is not a maximum duration for which the manager has to be in charge, except contrary clause included in the statute.

1. UNLIMITED LIABILITY COMPANIES

Management: if nothing is stated in the statute of the company all the partners are managers with differences in the execution of the decisions (JOINT SIGNATURE – DISJOINT SIGNATURE); Otherwise, can be either nominated at the beginning in the statute of the company (per Atto Costitutivo)or later in a meeting of the General Assembly (per Atto separato). In the second case is not defined if the vote has to be anonimous or by majority. There is not a maximum duration for which the manager has to be in charge, except contrary clause included in the statute.

Powers, duties and responsibilities: managers have to take all the actions in order to achieve the company goals. They have to keep the accounting records, prepare the financial statement and convene the members’ meetings. They have to administrate with care and are jointly and severally liable to the company.


• Scs (Société en commandite simple)


• Sas (Società in accomandita semplice)

1. UNLIMITED LIABILITY COMPANIES

(#) Partnerships

Share Capital: there is not a minimum amount fixed by law;

Number of partners: minimum 2, respectively 1 commandité and the other commanditaire;

Partners’ responsibility: limited to the amount of the contribution to the company for the commanditaire; unlimited responsibility for the commanditè partners for the company debts;

Number of partners: minimum 2, respectively 1 accomandatario and the other accomandante;

Partners’ responsibility: limited to the amount of the contribution to the company for the accomandante; unlimited responsibility for the accomandatario partners for the company debts;

Management: the only partners that can be manager of the company are commandités (France) and accomandatari (Italy). The same rules applicable respectively to the Snc in France and the Sas in Italy, have here to be respected for the nomination of the manager(s).

Powers, duties and responsibilities: the managers of the Scs and the Sas have the same powers, duties and responsibilities as the managers of the Snc of both countries, Italy and France. It is not to forget that only one type of partners can be nominated as a manager (commanditè, accomandatario).

Capital Injections: cash injection, contribution in kind for both types of partners; contribution in industry, generally not included in the share capital, only for commanditès and accomandatari partners;

(*)Join-stock companies


•SA (Société Anonyme) - Anonymous Company

Share Capital: minimum € 37000 with (Ltd.) or without (PLC) an offer to general public of the shares;

Number of partners: minimum 7;

Partners’ are represented by the shares that they own, which are freely negotiable;

Partners’ responsibility: limited to the amount of their contributions to the company;

Shares transmission:

• shares transmission within shareholders is allowed without any restriction;

• shares transmission to third parties can be allowed by a statutory clauses if the partners agree on that;

• in case of death of one of the shareholders the shares that were owned by the deceased can be transmitted by testament;

• shares can be transmitted through the implementation of a leasing contract if this is allowed by the statutes of the company. As the shares transmission to third parties, the partners should come up with an agreement on that in order to allow or forbid it.;

2. LIMITED LIABILITY COMPANIES

•SAS (Société par actions simplifiée) – Simplified join-stock company

Share Capital: can be freely determined in the statutes of the company (offer to general public of the shares is forbidden);


Partners’ are represented by the shares that they own;


Shares transmission in the SAS can be restricted by certain clauses determined in the statutes of the company:

• an inalienability clause that cannot exceed ten years;

• a clause that provide that should be an agreement before each shares transmission;

Moreover, shares may be subject to lease;

•SASU (Société par actions simplifiée unipersonnelle) – Simplified

sole proprietorship join-stock company

The SASU is a SAS created by a sole partner, or a SAS that become a SASU after that a shareholder buy all the shares of the company, thus, becoming a sole partner.





How does the Société Anonyme work?

With the Board of Directors

General Assembly of the Shareholders

President of the Board of Directors (to who is delegated also the general direction)

designates

Board of Directors

elects from among its members

Deputy General Director (s)

Elects after the proposal of the President of the Board of Directors

assist

ALL THE FUNCTIONS CONCENTRATED IN ONE PERSON The chairmanship of the Board of Directors and the general direction is entrusted to a sole individual. (President- General Director)



With the Board of Directors

FUNCTIONS DIVIDED BETWEEN TWO PEOPLE The chairmanship of the Board of Directors and the general direction is entrusted to two people. (President of the Board of Directors – General Director)


designates

Board of Directors

elects from among its members

President of the Board of Directors (OBLIGATORY)

General Director assist

Deputy General Director (s)

Elects after the proposal of the General Director


With the Supervisory Board The Société Anonyme headed by an Executive Board, under the supervision of the Supervisory Board, meets few followers in France.


designates

Supervisory Board (Supervisory function)

Director (Direction function)

Elects

President of the Director


•Spa (Società per Azioni) – Join-Stock Company

Share Capital: minimum € 120000 with (Ltd.) or without

(PLC)an offer to general public of the shares;


Partners’ are represented by the shares that they own, which are freely negotiable;



• 2 types of shares: BEARER SHARES and NOMINATIVE SHARES;

Moreover ,the shares’ circulation is restricted by 3 clauses:

• PRE-EMPTION CLAUSES;

• CLAUSOLE DI GRADIMENTO;

• CLAUSOLE DI RISCATTO;

• (Società per Azioni Unipersonale) – Sole Proprietorship Join-Stock

Company

The Spa Unipersonale is an Spa with a sole partner.


A. Società di capitali (*)


How does the Società per azioni work?

There are two different types of system

TIER SYSTEM TWO-TIER SYSTEM



0 level

1st level

2nd level

designates

Board of Directors (Controlling Functions)

designates

Supervisory Board (Auditing functions)

designates

Supervisory Board (Controlling and Auditing functions)

elects

Board of Directors

Set up within the company and composed by indivuals with special requirements

of indipendence and professionalism

If PLC External Auditing is obligatory


•SCA (Société en commandite par actions) Share Capital: minimum € 37000 with (Ltd.) or without (PLC) an offer to general public of the shares;

Number of partners: minimum 4: 1 partner commandité + 3 partners commanditaires;

Partners’ responsibility: limited to the amount of thecontributions to the company for commanditaires partners; unlimited responsibility of the commanditè partners;

Only the commandités partners can become managers of the company;

Capital Injections: cash injection, contribution in kind for both types of partners; contribution in industry, generally not included in the share capital, only for commanditès partners;


• shares transmission within shareholders is allowed without any restriction;

• shares transmission to third parties can be allowed by a statutory clauses if the partners agree on that;


• shares can be transmitted through the implementation of a leasing contract if this is allowed by the statutes of the company. As the shares transmission to third parties, the partners should come up with an agreement on that in order to allow or forbid it.




How does the Société en commandite par actions work?

Partners

Les commanditaires Les commandités

Auditor

Supervisory Board (Supervising functions)

Manager(s) (Managing Functions)

elect designate

designate

controls




A. Società di capitali (*)

•Sapa (Società in accomandita per azioni) Share Capital: same rule applicable to the SPA;

Number of partners: minimum 2: 1 partner accomandatario + 1 partner accomandante;

Partners’ responsibility: limited to the amount of thecontributions to the company for accomandanti partners; unlimited responsibility of the accomandatari partners;

Only the accomandatari partners can become managers of the company;

Capital Injections: cash injection, contribution in kind for both types of partners; contribution in industry, generally not included in the share capital, only for accomandatari partners;


• shares owned by accomandatari partners are freely negotiable;

• shares bought from accomandatari partners give the right to the buyer to become a partner, but without the possibility to become manager;


• shares can be transmitted through the implementation of a leasing contract if this is allowed by the statutes of the company. As the shares transmission to third parties, the partners should come up with an agreement on that in order to allow or forbid it.

How does the Società in accomandita per azioni work?


As we noticed for the SPA there are three organs with differents tasks


Has only deliberative functions for

the most significant decisions related to the “life of the

company”.

Board of Directors

Has managing functions.

The most important difference between the Board of Directors of an SPA and the Board of Directors of a SAPA is

related to the fact that in the latter there are two type of partners and only the

accomandatari partners can be part of it.

Supervisory Board

Has supervising functions.

B. Les Sociétés a responsabilitée limitée

• Sarl (Société à responsabilité limitée)

B. Le società a responsabilità limitata

• Srl (Società a responsabilità limitata)

Share Capital: can be freely fixed in the Statute of the company. It is divided in participation shares.

Number of partners: minimum of 2; maximum of 100; if the company is established by a sole partner we will

have an EURL (Enterprise Unipersonelle a responsabilité limitée);

Partners’ responsibility: limited to their contributions to the company;

Capital Injections: cash injection, contribution in kind;

contribution in industry, generally not included in the share capital;


Share Capital: the minimum is fixed by law in € 10000; the maximum is € 120000. In fact if the share capital growhts so that overcomes this threshold the Srl has to be converted in an Spa.

The partners are represented by the participation shares that they hold;

Number of partners: minimum of 2; if the company is set up by a sole partner we will have a Srl Unipersonale;

Organs of the SRL: for the organs of the SRL, is applicable what has been said previously for the SPA and SAPA;

Management: in the SARL we can have different type of managers according to the amount of participations shares that they hold: • Majority Manager > 50% of the share capital; • Minority Manager < 50% of the share capital; • Not-associated Manager: he is a third, external to the

company,that has been nominated as a Manager.


B. Le società a responsabilità limitata

• Srls (Società a responsabilità limitata semplificata)

Share Capital: from € 1 to € 9999;


The partners have to be obligatory younger than 35:

Inserted in the Italian Company Law with the Law number 27, 2012; MONTI GOVERNMENT The aim is to give one opportunity more in the actual context of general crisis felt among people.

Partners’ responsibility: limited to their contributions to the company;

CAUSES OF DISSOLUTION

We distinguish three natures of common causes of dissolution:

LAW CASES

VOLUNTARY CAUSES

JUDICIARY CAUSES

• Once reached the deadline stated in the Statute of the company;

• Realisation or termination of the company purpose; • Cancellation of the partnership agreement;

• If all the partners agree on the anticipate dissolution; • When specific events predicted at the beginning in the Statute

of the company happen;

• When all the powers, duties and responsibilities become held by a sole partner if the situation is not regularised in one year from the verification of the situation itself;

• The judiciary dissolution for right causes: - arguments within partners that do not permit the normal operation of the company; - non-performance of his/her obligations by one of the partners; • Difficulties met in reaching the company purpose; • Judiciary liquidation.

CAUSES OF DISSOLUTION

We distinguish also other causes of dissolution according to the type of company:

LIMITED LIABILITY

COMPANIES

UNLIMITED LIABILITY

COMPANIES

• The net assets becomes lower than the half of the share capital; • The share capital becomes lower than the requested minimum; • The number of partners becomes lower than the legal minimum.

• Death or occured incapacity of one partner; • Revocation of one of the STATUTORY MANAGER; • The decision to ban or to declare the inability of a partner.

• L’essentiel du Droit des Sociétés 2012 (Gualino – Lextenso éditions) • Diritto delle Società, Diritto Commerciale Vol. 2 – Gianfranco

Campobasso (UTET) • Material found on the internet

References - Download

THANK YOU for your attention.

We hope that we have been as much clear as possible.

END

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