The investor must be informed of some essential characteristics regarding the raising of risk capital through online portals.
RISK OF LOSING THE CAPITAL
With the term Start-up, we define the joint-stock company whose shares or quotas representing the share capital are not listed on a regulated market or on a multilateral trading system that has as exclusive or predominant corporate purpose the development, production, and marketing of innovative products or services with high technological value.
For this reason, the "innovative" component of the sector to which the company turns, and the "newly established" business nature constitute for the customer a greater investment risk than the traditional shareholding of any company listed on a regulated market or multilateral trading system.
An SME, although at a more-evolved stage of its life than a start-up, nevertheless presents characteristics of risk due to its specific nature.
The extent of the risk must make the customer aware of the need to adopt specific precautions so that the capital invested directly in the start-up, innovative SMEs or SMEs, in UCIs or corporations that, in turn, invest mainly in start-ups or innovative SMEs, do not represent a significant portion of their assets and are not destined for a short or medium-term investment objective.
The financial instrument for participation in the capital of an SME (either in the case of direct investment in the capital of companies, or in that of indirect investment through UCIs or corporations investing in SMEs) is defined as "illiquid", namely an instrument that could encounter various difficulties on the occasion of its sale:
- difficulty in finding a counterparty interested in the purchase; difficulty in negotiating a transfer price without having to issue a stronger or weaker discount;
- for an "illiquid" instrument, the above-stated involves the risk of gaining a lower profit or a significant loss of the capital initially invested.
PROHIBITION OF DISTRIBUTION OF PROFITS
Article 25 of Italian Legislative Decree no. 179 of October 18, 2012 on "Further urgent measures for the growth of the country", converted with changes by Italian Law no. 221 of December 17, 2012, prohibits innovative start-ups from distributing profits for the entire duration of the qualification of the innovative start-up (currently 60 months from the date of registration to the Special Section for innovative start-ups of the Register of Companies).
The benefits on the tax treatment of investment in start-ups and innovative SMEs are temporary; please refer to the current tax provisions for details.
Currently, the legislation establishes that for the years 2013, 2014, 2015, 2016 and 2017, natural and legal persons are permitted to deduct or detract a portion of the amounts invested in innovative start-up companies from their taxable income, both directly and indirectly, through UCIs or joint-stock companies that in turn invest mainly in start-ups or innovative SMEs.
Any tax benefits acquired may expire if the investor liquidates the investment before the scheduled time. The benefits on tax treatment can vary according to the evolution of national tax legislation. For an overview of the concessions recognized for start-ups and innovative SMEs, access the tax breaks section of the site (which summarizes all the concessions benefiting both start-ups, or innovative SMEs, and investors).
EXCEPTIONS TO CORPORATE LAW FOR START-UPS AND INNOVATIVE SMEs
Article. 26 of Italian Legislative Decree no. 179 of October 18, 2012 provides for a series of exceptions required by the provisions laid down by corporate law in favor of innovative start-ups.
Italian Decree Law no. 3 of January 24, 2015, ("Investment Compact"), converted by Italian Law no. 33 of March 24, 2015, has also extended these exceptions to innovative SMEs.
- the right to extend the so-called "postponement" of the losses for twelve months (from the end of the year following the end of the second following year) and, in cases of reduction below the statutory minimum, to allow the deferral of the decision on recapitalization by the end of the following year;
- the right to also use for innovative start-ups established as limited liability companies institutions only permitted for S.p.A.s (incorporations), in particular the determination of particular rights attributed to shareholders through the creation of share categories also without voting rights or with voting rights which are not proportional to participation, or the issue of participatory shareholding financial instruments;
- the right to offer the public participating shares in innovative start-ups established in the form of an SRL, making it easier to access the capital regardless of the chosen company type (through the online capital raising portals);
- the right to make an exception from the absolute prohibition of transactions on its shareholdings, if the operation is carried out in implementation of incentive plans that provide for the assignment of financial instruments to employees, collaborators, members of the administrative body or suppliers of works or services, including professional ones (stock options and work for equity);
- the right to issue financial instruments provided with equity rights or even administrative rights, excluding the right to vote in the decisions of the shareholders.
EXCEPTIONS TO BANKRUPTCY LAW (ONLY FOR INNOVATIVE START-UPS)
Article 31, paragraph 1 of Italian Legislative Decree no. 179/2012 establishes that in the event of a business crisis, the innovative start-up is not subject to insolvency procedures other than those provided for in Chapter II of Italian Law no. 3 dated January 27, 2012.
The legislator has therefore excluded subjecting of innovative start-ups to the procedures set out in Italian Royal Decree no. 267 of March 16, 1942, such as bankruptcy, arrangement with creditors and mandatory administrative liquidation.
The exception operates exclusively:
- in the presence of the innovative start-up qualification;
- for a fixed period of time, the first 4 years of business of the company starting from the date of incorporation, and in compliance with all the requirements for innovative start-ups of Art. 25, paragraph 2.
The settlement and management of the business crisis of an innovative start-up is therefore resolved with the settlement procedure of the crisis of over-indebtedness and liquidation of assets pursuant to Italian Law no. 3 of January 27, 2012, an instrument that reduces judicial settlement times and, above all, does not focus on the loss of capacity of the entrepreneur - unlike what happens in bankruptcy and other insolvency proceedings - but rather on the separation of corporate assets reserved for creditors.
Article 31, paragraphs 2 and 3 of Italian Legislative Decree no. 179/2012 prescribes another concession, establishing that once the twelve-month period has elapsed from the registration in the company register of the initiating of the liquidation decree for the innovative start-up, access to the data of the relative members registered in the same register are inhibited to the public, even if this information is organized in databases, remaining from that time exclusively reserved to judicial and supervisory authorities. To learn more: Art. 31 Italian Legislative Decree no. 179/2012