Exclusion of the absentee shareholder in the corporation

The Triveneto Notary Committee, in the absence of the law, has considered necessary to elaborate a suitable instrument to allow the exclusion of absentee shareholder in the corporation.

In particular, the status of shareholders in capital companies, unlike that in partnerships, is not linked to the figure of the shareholder as a person, but the figure of the shareholder as a participant in the share capital.

Therefore, it is possible to deduce why absenteeism in corporations cannot be attributed to the cause of the expulsion of the shareholder. In fact, the persistent inactivity of the latter with the activities of the shareholders’ general meeting does not cause the termination of the corporate relationship since the relationship between the shareholder and the corporation is strictly based on the participation in the share capital, with no interest in the personal dynamics underlying the contribution.

Nevertheless, absenteeism may also be problematic in corporations. In fact, a shareholder’s protracted inactivity concerning the meeting’s activities is capable of harming the corporation’s interests, especially where the shareholder has a significant stake in the share capital.

Hence, the Triveneto Notary Committee considered it necessary to find a suitable instrument to allow absentee shareholders to be ousted even in limited companies.

This instrument is foreseen by Opinions H.I. 29 and I.H.20, respectively for S.p.A. and S.r.l. and is identified in the exclusion clause for the prolonged absence of the inactive shareholder, which can be introduced in the articles of association either at the time of incorporation or subsequently. However, in the latter case, it must be approved by a resolution adopted with the majority provided for amendments to the articles of association and is valid only for the period after its introduction.

With the aforementioned Opinions, the Notary Committee of the Triveneto has therefore allowed the corporation’s articles of association to provide for the option of excluding a shareholder if he is not active. In particular, by providing for the redeemability of shares by the company or the other shareholders in the case of S.p.A. and absenteeism as a just cause for exclusion in S.r.l. according to Article 2473 bis of the Civil Code.

In any case, the condition for the operation of the clause is that the absence of the inactive shareholder lasts either for a certain period of time or a certain number of consecutive meetings. In both cases, the duration shall be expressly provided for in the articles of association.