New recommendation issued by the Notarial Council of Milan on shareholders’ agreements and transfer of shares

9 Febbraio 2021

On November 17, 2020, the Notarial Council of Milan issued recommendation (massima notarile) No. 194 stating that bylaws may limit the circulation of shares in joint-stock companies (società per azioni) or quotas in limited liability companies (società a responsabilità limitata) by making effectiveness of the relevant transfer to the company subordinate to the buyer’s prior adherence to a shareholders’ agreement of which the company itself is already aware. Therefore, a management body would be required to make such a shareholders’ agreement available to the prospective buyer. In any case, the shareholders’ agreement would still be subject to the applicable restrictions and provisions.

As a result of the above recommendation, a shareholders’ agreement would bind all shareholders (both original and new) under not only the rules that are included in the bylaws, but also rules contained in a private agreement. Shareholders often agree to enter into a shareholders’ agreement so that provisions that cannot be included in bylaws due to certain mandatory restrictions may be included in that agreement instead. However, the effectiveness of the provisions of a shareholders’ agreement is substantially different from the provisions included in bylaws: the first provisions are enforceable only among the parties, while the second provisions are enforceable vis-à-vis third parties (including prospective buyers).

Are notaries proposing a different form of effectiveness for shareholders’ agreements? We shall see.

Recommendation No. 194 issued by the Notarial Council of Milan is available here:

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