The recent Corporate Guidance No. 83/2022, issued by the Notary Council of Florence Pistoia Prato, establishes that it is legitimate for shareholders to decide to increase the share capital of a company during the drafting of the articles of incorporation, provided that such a decision takes effect only after the registration of the company in the business register. For this to be possible, it is necessary for all shareholders to be present and in agreement during the formation phase of the company.
Among the reasons that may motivate professionals to make this decision are the desire to facilitate the rapid formation of corporate assets, the entry of a new shareholder, or the use of the company as a vehicle for the indirect transfer of a business or a branch of a business.
Although Article 2331 of the Civil Code establishes that the company acquires legal personality only upon registration in the Business Register, the notarial document emphasizes that the company already exists at the factual and contractual level. Therefore, with the consent of all parties, it is possible to modify the social contract, including the increase in capital.
The resolution in question must be subject to two conditions:
- The registration of the company in the business register.
- The full payment of the capital.
Furthermore, changes to the bylaws or articles of incorporation are also allowed before the company's registration, provided that they take effect only subsequently.
As for the legal publicity of this decision at the business register, two solutions are possible:
- The first involves two advertising practices.
- The second solution requires a single advertisement, provided that the increase in share capital takes effect simultaneously with the registration of the company.
In summary, Corporate Guidance No. 83/2022 of the Notary Council of Florence Pistoia Prato recognizes the legitimacy of increasing the share capital within the scope of the articles of incorporation, provided that unanimous consent of the shareholders is respected, and the effectiveness of the resolution is subject to the registration of the company in the business register and the full payment of the capital.