ITALY Law and Practice Contributed by: Francesco Di Carlo and Filippo Raynaud, FIVERS Studio Legale e Tributario
In an SRL, corporate governance rules are more flex - ible and depend heavily on the by-laws. 2.2 Types of Decisions Typically, boards of directors define the overall strate - gy (eg, the business plan) and organisational structure of the company. The board appoints the chairperson (if not appointed by the shareholders), the board com - mittees, and defines the overall strategy and organisa - tion of the company. The board may delegate managerial powers to a chief executive officer, one or more executive directors, or an executive committee, provided that under Italian law some matters may not be delegated by the board of directors, such as, according to Article 2381, para - graph 4, Civil Code: • issuance of convertible bonds; • approval of the draft annual financial statements; • approval of capital increases; • resolutions regarding capital losses; and • merger and demerger proposals. Board committees perform informative, propositional and consultative functions vis-à-vis the board. 2.3 Decision-Making Processes SPA In an SPA with a board of directors, the decision-mak - ing process typically follows these steps: • the chairperson calls the board meeting pursuant to the by-laws. Generally, by-laws provide that a board meeting must be convened, if so requested by a minimum number of directors; • the board members meet in person and/or through distance connection (as provided under the by- laws). Unless provided otherwise in the by-laws, the meeting is validly held if the majority of direc - tors in office are present and resolutions are taken by a majority vote of those present; and • resolutions are recorded in the minutes of the meeting, which are signed by the chairman and the secretary and included in an official book of board resolutions.
In an SPA, board resolutions may not be taken through circular resolutions (unlike in SRL). SRL In an SRL with a board of directors, board resolutions may be taken through board meetings in person or through distance connection (like in an SPA) as well as by circular resolutions (ie, “written consultation” or “express written consent”. However, resolutions regarding specific matters are taken only through a board meeting (the approval of draft financial state - ments, merger and de-merger projects and a capital increase). All resolutions must be recorded in an official book. In an SRL and an SPA the chairperson is appointed by the shareholders/quota-holders or by the board itself. Once appointed, the board of directors may then appoint among its members: • a chairperson (if not appointed by the sharehold - ers); • a chief executive officer and one or more executive directors, granting them delegated powers; • an executive committee, granting it delegated powers; and • board committees (eg, remuneration committee, risk and control committee, nomination commit - tee). 3. Directors and Officers 3.1 Board Structure The appointment of internal committees is required pursuant to EU and Italian laws for companies oper - ating in specific sectors (eg, banks and management companies), or recommended by codes of corporate governance (eg, Corporate Governance Code). Typically, in a board of directors there are executive directors who have specific roles in the company or are entrusted with delegated powers, and non-exec - utive directors.
361 CHAMBERS.COM
Powered by FlippingBook