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.

Specific requirements for the independence of the directors may be set forth in the bylaws. In the case of companies with publicly traded shares, there are statutory requirements concerning the independence of directors.

As a general rule, the directors are responsible for damages arising from their breach of conflict of interest rules. In such a case, statutory auditors, external auditors and abstaining and absent directors can challenge any resolution taken by the board with a vote of directors in conflict, to the extent that the vote in conflict was essential to reach the needed quorum, and the company suffered damage as a result of the decision.

SPAs

Pursuant to Article 2391 ICC, the directors are under the duty to disclose any interest they may have, personally or on behalf of third parties, in a specific transaction, specifying the nature, terms, origin and relevance thereof to the board of directors and to the board of statutory auditors and abstaining from taking any action in conflict (or, in case of a sole director, referring the decision to the board of statutory auditors).

If such action is taken, the board of directors must expressly state the reason and the benefit to the company of the transaction.

Directors of listed companies who fail to disclose conflict of interests may incur criminal liability in accordance with Article 2629-bis ICC.

SRLs

In the case of SRLs, a court can be asked to declare contracts entered into by a director invalid to the extent that, in respect of such contracts:

  • the director acted in his or her own interest or in the interest of a third party; and
  • the third party with which the director contracted was aware (or should have been aware) of the conflict.
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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