The investor must be informed about certain essential features regarding the collection of risk capital through online portals.
- Migliora S.r.l. provides investors, in a concise and understandable form, including through the use of multimedia techniques, information relating to an investment in financial instruments through the Portal, concerning:
- the risk of loss of the invested capital;
- the risk of illiquidity;
- the prohibition of the distribution of profits in the event that the Offeror is a company belonging to the category of innovative start-ups;
- the tax treatment of the investments, the temporary nature of the benefits and their forfeiture in the case of innovative start-ups and innovative SMEs;
4-bis) the limits to the issuance of bonds and debt securities imposed by Articles 2412 and 2483 of the Civil Code and by the applicable special laws;
4-ter) he Manager's assurance that the subscription of bonds and debt securities is reserved, within the limits established by the Civil Code, not only to professional investors, but also to the persons indicated in paragraph 2, and to the following persons:
- non-professional investors who have a portfolio value of financial instruments referred to in the TUF, including money deposits, exceeding two hundred and fifty thousand euro;
- non-professional investors who undertake to invest at least one hundred thousand euro in an Offer, and who declare in writing, in a document separate from the contract to be signed for the commitment to invest, that they are aware of the risks connected with the commitment or the investment envisaged;
- non-professional investors who make the investment in the context of the provision of portfolio management or investment advisory services;
- exceptions to company law provided for in Article 26 of the Decree and to bankruptcy law provided for in Article 31 of the Decree;
- the contents of the business plan and the regulations or articles of association of an UCI;
- the right of withdrawal, pursuant to Article 13, paragraph 5 of the Consob Regulation and the relevant procedures for withdrawal
- Migliora S.r.l., without prejudice to the provisions of Article 13, paragraph 5-quinquies and Article 24, paragraph 2-quater of Consob Regulation, ensures that only investors other than professional investors or other categories of investors referred to in Article 24, paragraph 2 of Consob Regulation who have made certain statements, as detailed below, may access the sections of the Portal where it is possible to subscribe for individual Offers.
To this end, Migliora S.r.l., has provided that to make an investment it is necessary to complete a registration form on the Portal. This form allows to divide retail investors and professional investors, as well as to distinguish between retail investors and individuals from companies.
For retail investors, it will not be possible to be authorised to invest unless the following declarations have been made:
- the user declares that he/she has read the investor education information provided for in Article 14, paragraph 1, letter k), published on the CONSOB website;
- the user declares to have read the information contained in the "INVESTMENT" Menu and in particular the information indicated in paragraph 1 of Article 15 of the Regulation;
- the user declares to be able to financially support the eventual entire loss of the investment he intends to make.
If the above statements are not affirmative, the user will not be able to access the page that allows you to make the investment.
Migliora S.r.l. provides on its website, accessible to all even without registration, a special section in which will be reported the relevant legislation and all the information required by Article 15 of Consob Regulation.
The financial instrument of participation in the capital of an innovative start-up or SME (both in the case of direct investment in the capital of the companies and in that of indirect investment through UCITS or corporations which in turn invest in SMEs) is defined as 'illiquid', i.e. it is an instrument which could encounter various types of difficulties when it is sold:
- difficulty in finding a counterparty interested in buying it;
- difficulty in negotiating a transfer price without having to apply a larger or smaller discount;
The above implies for an 'illiquid' instrument the risk of realising a lower profit or a significant loss of the capital initially invested.
Prohibition of profit distribution
Article 25 of Law Decree No. 179 of 18 October 2012 on "Further Urgent Measures for the Growth of the Country", converted with amendments into Law No. 221 of 17 December 2012, prohibits innovative start-ups from distributing profits for the entire period of their innovative start-up status (currently 60 months from the date of registration in the Special Section for Innovative Start-Ups of the Companies' Register, a limit extended by a further 12 months by the "Decreto Rilancio" - Law Decree No. 34 of 19 May 2020).
Investments in the share capital of 'eligible' innovative startups and innovative SMEs (pursuant to the Ministerial Decree of 7 May 2019 ), registered in the special section of the Companies Register reserved for innovative startups or SMEs, benefit from the tax benefits for income tax purposes (the benefit does not apply, however, for IRAP purposes) introduced by Article 29 of Decree-Law No. 179/2012 converted with amendments into Law No. 221/2012 (the "Decreto Crescita Bis"). Any tax benefits acquired may be forfeited if the investor liquidates the investment before the envisaged time. Tax treatment benefits may vary according to the evolution of national tax legislation.
These benefits apply to individuals subject to personal income tax under Title I of the Testo Unico delle Imposte sui Redditi (the "TUIR", Presidential Decree No. 917 of 22 December 1986) and to individuals subject to corporate income tax under Title II of the TUIR who make an investment in the capital of eligible innovative start-ups or innovative SMEs in a favourable tax period.
Company law exemptions for innovative start-ups and SMEs
Article 26 of Decree-Law No. 179 of 18 October 2012 provides for a number of derogations from the provisions of company law in favour of innovative start-ups.
Decree-Law No. 3 of 24 January 2015 ("Investment Compact"), converted by Law No. 33 of 24 March 2015, extended these exemptions also to innovative SMEs.
- option to extend by twelve months the period of so-called "carry forward" of losses (from the end of the following financial year to the end of the second subsequent financial year) and, in cases of reduction below the legal minimum, to allow the deferral of the decision on recapitalisation by the end of the following financial year;
- the option to use, also for innovative start-ups established as limited liability companies, institutions allowed only in S.p.A., in particular the determination of particular rights attributed to the shareholders, through the creation of categories of shares even without voting rights or with voting rights not proportional to the shareholding, or the issuance of participatory financial instruments;
- the right to offer to the public shares in innovative start-ups established as limited liability companies (S.r.L.), thus facilitating access to capital regardless of the chosen corporate form (through portals for the raising of capital online);
- faculty of derogation from the absolute prohibition of transactions on one's own shareholdings if the transaction is carried out in the implementation of incentive plans that provide for the assignment of financial instruments to employees, collaborators, members of the administrative body or providers of works or services, including professional ones (stock options and work for equity);
- the right to issue financial instruments providing equity or administrative rights, excluding voting rights in shareholders' decisions.
EXEMPTIONS TO BANKRUPTCY LAW (for innovative start-ups only)
Article 31(1) of Decree-Law no. 179/2012 provides that, in the event of a business crisis, innovative start-ups are not subject to bankruptcy proceedings other than those provided for by Chapter II of Law no. 3 of 27 January 2012.
The legislator has therefore excluded innovative start-ups from being subject to the procedures set forth in Royal Decree no. 267 of 16 March 1942, such as bankruptcy, composition with creditors and compulsory administrative liquidation.
The exemption operates exclusively:
- in the presence of the qualification of innovative start-up;
- for a specific period of time, the first 4 years of the company's activity from the date of incorporation, and provided that all the requirements for innovative start-ups set out in Article 25(2) are met.
The settlement and management of the business crisis of an innovative start-up is therefore resolved by the procedure for the settlement of the crisis due to over-indebtedness and liquidation of assets provided for by Law no. 3 of 27 January 2012, a tool that allows to reduce the time for judicial liquidation, and above all does not focus on the loss of the entrepreneur's capacity - unlike in bankruptcy and other insolvency procedures - but rather on the separation of the company's assets reserved for creditors.
Article 31, paragraphs 2 and 3, of Law Decree no. 179/2012, provides for another facilitation, establishing that, once twelve months have elapsed from the registration in the companies' register of the decree of the opening of the liquidation of the innovative start-up, access to the data of the relevant shareholders registered in the same register is inhibited to the public, even if such information is organised in databases, remaining from that moment exclusively reserved to the judicial and supervisory authorities.
For further details:
A person who intends to make an Offer of financial instruments through an authorised portal for the online collection of capital must include among the documentation relating to the Offer made by the Offerors, also a business plan drawn up in accordance with criteria as close as possible to commonly accepted formats and principles in order to provide all the information necessary for a rational investment.
The operator of the portal shall publish the business plan of the Offeror produced by the latter, pursuant to Consob Regulation 18592/13.
A business plan generally contains:
- Summary description of the investment project and an illustration of the type of company that is carrying out the business initiative in pursuit of its corporate purpose.
- Presentation of the curriculum vitae of the entrepreneur and management (past experience and role in the initiative).
- Analysis of the potential and target market, characteristics of the competition and identification of strengths and weaknesses, competitive positioning, market shares.
- Sales objectives, distribution channels and commercial organisation, possibly linked to a marketing and advertising communication plan relating to brand and product/service development.
- Main risks related to the exercise of the activity related to the business project.
- Description of the technical feasibility of the project in relation to the production process, administrative and environmental authorisations, the need for investments in production facilities, technological infrastructure or commercial channels, the availability of manpower and infrastructural services such as logistics and transport, energy, telecommunications.
- Economic-financial feasibility plan indicating the overall financial requirements (for technical and intangible investments and to finance the company's start-up and working capital) and the relevant mix of hedging instruments.
- Information on the expected profitability of the investment and the risk factors that may negatively affect it, starting from realistic and prudential assumptions.
- Indication of the investors already involved in the support of the project and a well quantified proposal for new investors regarding the overall required contribution of new financial resources.
- Chronological development programme of the main phases of the project and related activities, with details of the resources involved.
Withdrawal, revocation and reconsideration
Non-professional investors, i.e. other than those referred to in Article 2, para. 1, letter "j", of Consob Regulation, have the right to withdraw from the order placed on the Portal by means of a communication to be sent to Migliora S.r.l. within seven days following the order itself: in case of withdrawal, the amounts already paid by the investor will be returned to him by the bank that holds the account in the name of the Offeror.
Investors have the right to revoke their order when, between the time of subscription and the time when the Offer is definitively concluded, a new fact occurs or a material error is detected, concerning the information displayed on the Portal, which is likely to affect the investment decision.
The right of withdrawal may be exercised within seven days from the date on which the new information is brought to the attention of investors: in the event of the right of withdrawal being exercised, the sums already paid by investors will be returned to them by the bank holding the account in the name of the Offeror.
For the sake of clarity, the investor may express, through his personal account on the Portal/by sending an e-mail to email@example.com, his wish to withdraw from the investment. At the end of the transaction, if the investor is entitled to exercise this right, the banking partner will return the amount invested by transfer from the Offeror's unavailable account to the account indicated by the investor.
In the event that technical problems occur which prevent the investor from withdrawing, the investor may contact the Migliora Team by sending an email to firstname.lastname@example.org; a specific notice will be posted on the website.
The Migliora Team will verify by contacting the Portal maintenance service whether technical problems have occurred during the time period reported by the investor. If so, the Migliora Team will take up the investor's request and check whether the investor was able to exercise the right of withdrawal at the time of the malfunction. If not, the investor's right will be considered forfeited and his request will not be taken into account.
In the event of a revocation, the Improvement Team checks whether the Provider or the Portal Manager has published suitable information for the investor to exercise his right of revocation. If the outcome is negative, the revocation request is rejected. If the outcome is positive, the Migliora Team checks that no more than 7 days have elapsed between the date on which the Offeror or the Portal Manager published the information and the date on which the investor sent the e-mail to email@example.com exercising the right of withdrawal. If the request has been made within this period, the Migliora Team instructs the banking partner to return the amount to the investor in the manner mentioned above.
In both cases, the Migliora Team informs the investor of the outcome of the verifications by sending an e-mail to the address provided by the investor.
The banking partner provides the Migliora Team with confirmation that the investor's investment has been withdrawn. The Migliora Team archives the file by uploading it from the administrator area of the Portal into the appropriate folder and updates the status of the investments accordingly, if it is not done automatically by data transfer from the banking partner to the Portal.
At the end of the offer period, in the absence of withdrawal or revocation, the orders properly executed are considered definitively completed Migliora S.r.l. will then verify the successful outcome of the Offer and will notify within the next three days through the home page of the website of the Portal.
If the Offer has not been successful, the sums paid by the investors will be returned to them by the bank holding the account in the name of the Offeror.
If, on the other hand, the Offer is successful, the instruments subscribed by the investors will be delivered to them or registered in their name; the registration of the instruments will take place in accordance with the law.
Specifically, in the event that the Offer relates to shares of limited liability companies, the registration may take place, alternatively, in the form provided for by Article 2470 of the Italian Civil Code (i.e. by notarial deed). (i.e. by notarial deed).
Each Offer published on the Portal has a duration of 60 (sixty) days, with the possibility of extension for a further period of up to a maximum of 30 (thirty) days.
In order to guarantee the return of the sums to the investors, in all cases where this is envisaged, the account in the name of the offering companies is subject to a restriction of unavailability for the entire duration of the offer and for seven days following its closure.