Esclusione e limitazione del diritto d'opzione nella prospettiva del rapporto di investimento

Especially in publicly traded companies, renounceable pre-emptive rights are mainly intended by company law to provide shareholders with protection against inappropriate dilution of the economic value of their investments. Indeed, shareholders can either buy a proportional interest in any future issue of the company’s common stock or sell such rights in the secondary market, thus ‘monetizing’ the dilution they will suffer from non-participating to the new share offerings. However, in order to adequately perform this latter function, pre-emptive rights require an efficient and liquid secondary market. Since this fundamental circumstance rarely occurs in practice, the paper discusses whether (and under which circumstances) the foreseeable illiquidity of rights’ secondary market can be regarded as a restriction of the shareholders’ pre-emption right, thus imposing that new shares are issued at their ‘real’ value (art. 2441, para. 5 and 6 of the Italian Civil Code).