ITALY Law and Practice Contributed by: Francesco Di Carlo and Flavio Acerbi, FIVERS Studio Legale e Tributario
4.10 Approvals and Restrictions Concerning Payments to Directors/ Officers In an SPA, the shareholder meeting resolves upon the remuneration of the directors and no specific restrictions apply. If so provided under the by-laws, the shareholder meeting may resolve upon the aggregate remuneration of all directors and leave it to the board to split the total amount among the board’s members. The remuneration of directors with specific offices indicated in the by-laws is decided upon by the board of directors, in consultation with the board of statutory auditors. In a SRL, it is up to the by-laws to set forth the rules regarding the remuneration of directors (absent any specific provisions on this matter in the Civil Code). In a listed SPA, the shareholder meeting is also required to: • approve a remuneration policy for directors, general manager, key officers and members of the board of statutory auditors; and • any remuneration plan based on financial instruments (eg, a stock option plan) for directors and employees of the company, its parent company, or controlled companies. Specific restrictions on remuneration of directors and employees are provided pursuant to spe - cial sector laws (eg, banks, financial institutions), including with respect to the ratio between vari - able and fixed components as well as cash or instrument-based forms of remuneration. 4.11 Disclosure of Payments to Directors/Officers In an SRL and in a non-listed SPA the remunera - tion of directors and officers is disclosed within
pany may be liable jointly with the parent com - pany itself vis-à-vis: • the participants in the controlled entity, for any damages to the profitability and value of the participation; and • the creditors of the controlled entity, as to the capacity of the company to pay its debts). 4.9 Other Bases for Claims/Enforcement Against Directors/Officers In addition to the cases indicated under 4.8 Con - sequences and Enforcement of Breach of Direc - tors’ Duties, in case of a breach of corporate governance requirements a director may also be subject to: • administrative fines, for breaches of specific corporate governance-related administrative obligations (eg, omissions in the registration of corporate resolutions in the Companies’ Registry); and • criminal liability, for specific corporate-gov - ernance related criminal offences (eg, false communications to the public, fraudulent influence on the shareholder meeting). Criminal and administrative liability is generally non-waivable. On the other hand, civil liability for damages of a director vis-à-vis the company and shareholders may be mitigated through an insurance policy (so-called “Directors and Officers” Insurance Policy). The shareholders may also decide to grant a waiver to the directors for any potential liability (eg, through a vote of the shareholder meeting), in relation to events and circumstanc - es that occurred beforehand (whereas a pre- emptive discharge of liability is not admissible).
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