Italy – Enterprises and Innovative start up companies / Imprese e Start up innovative

by Studio Legale Avv. Elena Zanconti
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Italy – Enterprises and Innovative start up companies: The Association of Italian corporations (“Assonime”) (*) with Circular no. 11 of May 6, 2013 analysed some characteristics of the regulation introduced into the Italian legal system by Law Decree no. 179/2012 on innovative companies in the technology sector (the so-called “Innovative start up”). Among others issues, Assonime focuses on some company law aspects, which concern the purpose of the company, the law requirements of the innovative start-up (the ownership and the relative right to vote of the holdings representing more than 50% of share capital shall belong to individuals), the particular rules to which the quotas can be subjected when the innovative start-up is set up as a limited liability company (S.r.l.). On this regards, the Law Decree no. 179/2012 offers the possibility to create special classes of quotas that give their owners specific rights (articles of association may freely determine their content, notwithstanding the provisions of Article 2468 of the Italian Civil Code, provided that “within the limits imposed by law”). Basing on this wide law provision, Assonime believes such as possible that quotas be subjected to terms or conditions.

(*) Assonime is an Italian association who aims at improving the industrial, commercial, administrative and fiscal legislation in Italy: promotes studies and researches on law and economics; publishes data and news of the sector; organizes seminars and work groups on issues of interest for the companies; represents the point of view of the Italian companies towards Italian, European and international institutions.

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Imprese e Start up innovative – Con circolare n. 11 del 6 maggio 2013, Assonime illustra i complessi profili della disciplina introdotta dal D.L. n. 179/2012 (Decreto crescita-bis) per promuovere la nascita e la crescita di imprese innovative nel settore tecnologico (le cd. “start up innovative”). Il nuovo istituto interessa infatti diversi ambiti normativi: il diritto societario, il diritto del mercato dei capitali, il diritto fallimentare, il diritto del lavoro e il diritto tributario. Riguardo al diritto societario, la circolare Assonime n. 11 del 2013 interviene, tra l’altro, sul tema dell’oggetto sociale (al quale viene conferita una dimensione molto ampia); dei requisiti richiesti per la qualifica di start up innovative (devono spettare a soci persone fisiche, in misura superiore al 50% del capitale sociale, la titolarità sia della partecipazione, sia del diritto di voto); e, per le start up innovative costituite in forma di S.r.l., del regime delle quote. In merito a quest’ultimo punto, il D.L. n. 179/2012 offre infatti la possibilità di creare speciali categorie di quote che attribuiscono ai possessori il godimento di particolari diritti: l’atto costitutivo può liberamente determinarne il contenuto, anche in deroga a quanto previsto dall’art. 2468 c.c., purché “nei limiti imposti dalla legge”. In considerazione di tale ampio margine d’azione, l’Associazione ammette ad esempio la possibilità di apporre alle quote un termine finale o una condizione sospensiva o risolutiva: una volta scaduto il termine o verificatasi una delle suddette condizioni, i diritti connessi a tali speciali categorie di quote decadono e le stesse si convertono in partecipazioni ordinarie. In merito ai possibili limiti, invece, l’Assonime, ritiene ad esempio che non siano ammissibili quote i cui possessori vengano esclusi da ogni partecipazione agli utili o alle perdite o che prevedano una remunerazione delle stesse svincolata dal risultato dell’esercizio che si sostanzi in una qualche forma di interessi.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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