| Legal instruments making it possible to control a company with minority of capital |
T he Italian Civil Code provides for a type of company which is a combination of a limited partnership and a joint stock company, involving two types of shareholders: roughly the equivalent of a limited partner on the one hand and a type of general partner on the other. This sort of company allows de facto control and management without the controlling shareholder having the majority of the share capital. This company's principal characteristics are: a clear-cut distinction between the shareholder holding the patrimonial rights (equivalent to limited partner, with limited liability) and the shareholder undertaking the management of the company (general partner, unlimited liability). In this type of company, known as a "Societa' in Accomandita per Azioni", the "general partner" plays the role of managing director, independently from his participation in the company. The "general partner" has the full management and control of the company and the right to veto any modification of the articles of incorporation, including the appointment of other managers or their replacement. In this case, succession to the company's management is easier to plan, making the undertaking of operations of leveraged buyout more difficult. The unlimited liability of the "general partner" is linked to the capacity of being the company's sole decisionmaker and it is limited to the pre-determined period of time during which he holds office. This means that he will not be liable for the obligations contracted before he obtained that status, nor for those undertaken after he surrenders his right of management and control of the company, thus becoming a "limited partner". On the contrary, the moment in which the "limited partner" undertakes obligations with third parties, he becomes liable without limit for those transactions. The voting trust is another instrument usually used by minority share-holders to gather together their voting rights in order to control the company but it does not offer such a reliable guaranty. The voting trust also exists in legal systems of many other countries. This agreement has a limited life and may be rescinded by the shareholder at any time. |
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