With the decision of 28th September 2015, No. 19193, the Court of Rome stated the validity of the shareholders’ agreement clauses which provide that the “incoming” shareholders undertake not to bring the liability action against the “outgoing” directors or not to vote for it in the general meeting.
The case The court case concerns a share purchase agreement under which two shareholders of a company ceded their shares to another company, which – paid only one part of the agreed price – undertook to pay the rest as established by the contract.
Because of the non-payment of the amount due by the acquiring company, the shareholders took a legal action in order to obtain an injunction against it.
With its writ of summons in opposition the acquiring company asked the Court to declare the nullity of the contract as “aliud pro alio”, the nullity of the clause which provided not to bring the liability action against the “outgoing” sole director of the company sold, and finally, to confirm and declare the termination of the contract pursuant to Article 1497 of the Italian Civil Code.
The issue The most important issue addressed by the Court of Rome concerns the classification – as “shareholders’ agreement” – of the agreement under which the new shareholders undertook not to bring the liability action against the “outgoing” sole director of the company (or not to vote for it in the general meeting), and the validity and effectiveness of this agreement, when taken at the conclusion of the mandate.
The decision of the Court The Court of Rome, after having rejected the plea of nullity of the contract pursuant to Article 1497 of the Italian Civil Code, addressed the issue of the classification and of the validity of the agreement described.
The Court ruled that these types of agreement are to be considered as “shareholders’ agreements”. To define an agreement as “shareholders’ agreement”, in fact, is not essential that all the participants of the pact are shareholders, if the agreement concerns the exercise of the shareholders’ rights and powers.
The Court – after having confirmed the general validity of the shareholders’ agreements, and after having also said that they can although be considered invalid when they are in conflict with mandatory rules or with general principles – ruled that the shareholders’ agreement shall not be considered unlawful, when it provides a waiver of the liability action against the director who sold his shares and ceased to hold his office and, therefore, it refers to past activities carried out by the “outgoing” director.
In the opinion of the Court, in fact, the shareholders’ agreement under which the shareholders undertook not to bring the liability action against the company’s director can be void only when the agreement concerns a director in office and therefore a preventive waiver of a social right. According to the Court, in this hypothesis the function of prevention of mismanagement (according to Article 2392 and 2393 of the Italian Civil Code) would be nullified. This type of agreement would be as well an agreement which excludes or limits the liability of the debtor in breach of Article 1229 of the Italian Civil Code (and so void pursuant to the same Article).
When, instead, the agreement regards the assumption of a commitment not to vote for the liability action against a director who has ceased to hold the office, and refers to already performed activities, it doesn’t have the same negative value.
The nature of the agreement taken at the conclusion of the mandate excludes the reprehensible nature of the shareholders’ agreement in terms of the violation of Article 2392, 2393 and 1229 of the Italian Civil Code.
Commentary On the issue addressed by the Court of Rome, even in the recent past, there are many different decisions, which came to different conclusions, in the sense of nullity of the clauses which provided a waiver of the liability action against the “outgoing” director, since these pacts would be aimed at evading mandatory provisions of law (see, eg., Court of Milan, 16th June 2014, No. 7946; Supreme Court of Cassation, 28th April 2010, No. 10215; Supreme Court of Cassation, 27th July 1994, No. 7030)
The decision of the Court of Rome, instead, valued the fact that, if the agreement has been taken at the end of the mandate, the purchasers and incoming shareholders can examine the performances and the results of the company. This situation prevents to consider invalid the agreement, as it is not in breach of the rules governing the liability of directors.