Any change, even only a purely formal change, in the clauses of the by-laws of a company is considered to be an amendment to the by-laws. As a rule this competence belongs to the extraordinary shareholders’ meeting and the relevant decision must be written in the minutes by a notary public and then registered with the Register of Companies.
The decision must be taken by a majority vote, any clause in the bylaws setting forth that unanimity is required to change the Memorandum of Association is declared to be null and void by case law.
The procedure for modifying the Memorandum of Association and the bylaws comprises three moments: certification of the will of the meeting by a Notary public, notarial (or in specific cases judicial) control for confirmation purposes, and public notice/disclosure.
In fact the law prescribes that the notary public who has recorded the resolution of the meeting, within thirty days, after verifying that the conditions laid down by the law have been fulfilled, applies to the Chamber of Commerce of the place where the company has its head office to enter the decision into the Register of Companies.
After verifying the formal regularity of the documentation, the office of the Register of Companies records the resolution in the register. If the notary public considers that the conditions laid down by the law have not been met, he notifies the directors, who may appeal to the court with a view to obtaining the aforesaid entry of the resolution in the register of companies.
The most important amendments to the Memorandum of Association concern transactions involving the share capital - a) increase in capital through payments, that is by issuing new shares to be offered as an option to the shareholders and, where the latter fail to underwrite the new shares within a given deadline, they are offered to third parties; b) increase in capital without payment, in which case the required capital is taken from the reserves and special funds included in the company’s assets; c) reduction in capital due to losses or, to the will of the shareholders where there are no losses (which is now possible even when there is no capital surplus with respect to the corporate aims), - or to changes in the structure, organisation and legal status of the company (transformation, mergers and demergers).
Other transactions that can be carried out are those relative to the establishment of one or several separate funds devoted to a specific purpose. Separate funds may be of two types: either specifically targeted to a specific purpose/deal; or destined to being invested in a specific transaction for total or partial distribution which is to be made (wholly or partially) with the revenues produced by the transaction.
Given the technical complexity of these amendments and transactions, and given the size of the consequences of such an initiative if not carefully engineered, seek the advice of your notary public who will provide all the relevant information.