Last Updated June 21, 2019

Law and Practice

Authors



CMS Adonnino Ascoli & Cavasola Scamoni is unique in its composition, which combines extensive local and international expertise in order to assist clients with all types of cross-border issues. The Italian corporate team (with offices in Milan and Rome) comprises over 30 professionals and is best known for its knowledge leadership, especially in the energy, life sciences, automotive and media sectors. It has strength in mid-market deals, with a number of long-term clients in this area. Recent highlight deals include international transactions concerning Total, including assisting Total Marketing Services SA and ERG Spa with the sale of TotalERG Spa to API Spa (Anonima Petroli Italiana S.p.A) and providing assistance to Moneygram with respect to restructuring after Brexit. The firm also concluded several high-value deals in 2018, with clients including NMS Group, Telit, and Cuki. It covers all corporate-related practice areas.

The governance and management of the company is a responsibility of the management body.

SPAs

The main bodies involved in the governance and management of the companies vary based on the model that the shareholders choose to adopt at the time of the incorporation of the company, or subsequently.

The most common model of corporate governance is the traditional model (modello tradizionale), which entails that the company is managed either by:

  • a sole director (amministratore unico), or
  • a board of directors composed of two or more directors (consiglio di amministrazione).

Alternatively, the company may adopt one of the following models:

  • in the one-tier or monistic model (modello monistico), the company is managed by a board of directors appointed by the shareholders, which elects the management control committee (comitato per il controllo sulla gestione) from among its members;
  • in the two-tier or dualistic model (modello dualistico), the company is managed by a management board (consiglio di gestione) which is appointed by the supervisory board (consiglio di sorveglianza). The supervisory board is appointed by the shareholders.

In the case of companies with publicly traded shares, the 2006 Corporate Governance Code establishes the rule that the company must provide prior information on the reasons why and manner(s) in which it intends to adopt a non-traditional model.

SRLs

In the case of SRLs, the management body might be either:

  • a sole director;
  • two or more directors, with joint or separate powers, or
  • a board of directors composed of two or more directors.

As a general rule and unless the bylaws provide otherwise, the management body has the power to manage the company and to carry out any act of ordinary and extraordinary management of the company, save for those powers and matters expressly reserved to the shareholders/quotaholders by the law or the bylaws, eg:

  • approval of the financial statements and distribution of dividends, which shall be resolved within 120 days (or, in the case of postponement for justified reasons, 180 days) after the end of the fiscal year;
  • appointment and compensation of the members of the management body;
  • appointment of statutory auditors and external auditors;
  • responsibility of directors and statutory auditors;
  • amendments to the bylaws;
  • reduction of the corporate capital for loss; and
  • appointment and revocation of liquidators.

In the case of a sole director or directors with separate powers, unless the bylaws provide otherwise, directors have joint and several power to manage the company and to carry out any act of ordinary and/or extraordinary administration; the decisional process concerning which is not subject to specific formalities.

In the case of collective bodies, different rules apply based on the nature of the company, as described below (since the traditional model is the most common model of corporate governance in SPAs, the rules below are applicable to the decision-making process of the board of directors).

SPAs

Decisions are adopted following a regular meeting, according to the rules which are usually set forth in the bylaws.

In brief, as a general rule and unless the bylaws provide otherwise:

  • the meeting is convened with a notice of call to be sent to all the directors and statutory auditors (if appointed);
  • even without a notice of call, a plenary meeting can be validly assembled if all the directors and statutory auditors are in attendance;
  • as far as quorums are concerned, meetings are duly assembled with the attendance of the majority of the directors and resolutions pass with the favourable vote of the majority of the attendees;
  • the meeting is chaired by a chairman, identified by the bylaws or appointed by the attendees, who verifies the regularity of the meeting and ascertains the results of the vote.

SRLs

The following matters:

  • approval of draft financial statements;
  • merger/de-merger plans; and
  • decisions or proposals for capital increase delegated to the board by the quotaholders,

must be adopted by the directors following a regular meeting. As a matter of practice, the applicable rules and formalities are set forth in the company’s bylaws; otherwise, the rules applicable to SPAs apply.

The bylaws of SRLs might provide that all the other decisions can be adopted by the directors through the procedure of written consultation or written consent, according to the specific formalities provided for therein. As a general rule, it is necessary that all members are able to participate in the decision and is adequately informed and that the executed documents clearly indicate items on the agenda and the consent granted to them.

CMS Adonnino Ascoli & Cavasola Scamoni

Galleria Passarella 1
20122 Milan
Italy

+39 02 89 28 38 00

+39 02 48 01 29 14

daniela.murer@cms-aacs.com www.cms.law
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Authors



CMS Adonnino Ascoli & Cavasola Scamoni is unique in its composition, which combines extensive local and international expertise in order to assist clients with all types of cross-border issues. The Italian corporate team (with offices in Milan and Rome) comprises over 30 professionals and is best known for its knowledge leadership, especially in the energy, life sciences, automotive and media sectors. It has strength in mid-market deals, with a number of long-term clients in this area. Recent highlight deals include international transactions concerning Total, including assisting Total Marketing Services SA and ERG Spa with the sale of TotalERG Spa to API Spa (Anonima Petroli Italiana S.p.A) and providing assistance to Moneygram with respect to restructuring after Brexit. The firm also concluded several high-value deals in 2018, with clients including NMS Group, Telit, and Cuki. It covers all corporate-related practice areas.

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