The corporate governance advisory board
On 30 July 2012, the Board of Directors set up the corporate governance advisory board (the “board”) which is responsible for analysing the existing corporate governance structure and subsequently to propose any changes to be made to the Board of Directors. The board provides proposals and opinions to the Board of Directors and each committee, assisted by independent experts, so that the corporate governance rules are in line with best practices, especially the Bylaws and internal regulations and procedures, starting with the Related party transactions procedure, the management of any conflicts of interest and protection of minorities.
The board members are Francesco Carbonetti (as coordinator) and the directors Marina Brogi, Giuseppina Capaldo and Massimo Tezzon.
During the year, the board prepared reports for the Board of Directors (i) to support of the assessment that the directors who serve on the executive committee can be considered as non-executive, as involvement in the committee, given the subject of the related resolutions, does not entail the systematic participation of its members in the day-to-day management of the company; (ii) on the review of the Procedure for related party transactions and the identification of related party transactions.
Lastly, Mr. Carbonetti and Mr. Tezzon, members of the corporate governance advisory board who are not part of the Board of Directors, gave their favourable opinion on compliance with the regulations issued by Consob of the procedure followed by the independent directors in relation to the activities of Impregilo's corporate bodies, especially the independent directors, within the framework of the takeover bid launched by Salini S.p.A. for all of Impregilo S.p.A.'s ordinary shares.
The strategic agreement
On 25 September 2012, the Board of Directors approved the Strategic Agreement, which was signed on 27 September 2012.
Under the terms of this Strategic Agreement, Impregilo group and Salini group have commenced a collaboration strategy aimed at exploiting opportunities to increase value and revenue of both groups and to achieve cost savings thanks to operating and industrial synergies.
The Strategic Agreement sets out procedures for the coordination of the two organisations, taking into account the single group companies’ characteristics, their structure and size, in order to:
- identify, assess and propose to the relevant bodies of each of the Parties how to take advantage of possible commercial and industrial synergies;
- identify commercial projects covering infrastructure and large-scale works of potential interest to both Parties and regulate their participation in the related tenders, i.e., with the joint preparation and presentation of bids.
The Strategic Agreement does not cover the sale and/or acquisition of business units and/or equity investments, or mergers and/or demergers, or the sale, transfer and/or licensing of intellectual property rights or know-how, which each Party will continue to own separately. Nor does the Strategic Agreement imply a division of the markets/countries in which the Parties carry out or will carry out their activities independently or jointly. It does not stop them from independently undertaking new commercial initiatives in these markets/countries, within the terms of the Agreement itself.
Conversely and without prejudice to each Party’s commitment to comply with the coordination procedures set out therein and its aim, the Strategic Agreement does not generate any obligation for the Parties, except to the extent that specific decisions in this respect may be adopted independently from time to time by the relevant company bodies.
The Strategic Agreement, consisting of the simple adoption of procedures designed to define a collaboration method, does not in itself entail the transfer of resources, services or obligations between related parties. Moreover, with respect to its provisions (see point (b)), the related party transactions procedure, approved by Impregilo’s Board of Directors on 30 November 2010, implementing Consob regulation adopted with resolution no. 17221 of 12 March 2010 and revised by it on 9 July 2012, specifically provides that “ for the purposes of this Procedure, the participation of the company and/or Impregilo group together with one or more related parties in public tenders called to construct large-scale works (construction, engineering and plant construction, concessions) is not considered to be a related party transaction”.
However, Impregilo’s Board of Directors has deemed it appropriate to adopt specific measures to prevent conflicts of interest that could arise as a result of implementation of the Agreement and negotiation of its terms, given that certain Impregilo directors, and specifically its CEO, have similar roles in Salini group companies.
Specifically, the procedure applied to define the Agreement was based on the guidelines set out in the corporate governance advisory board’s opinion, issued on 6 September 2012. The board recommended, inter alia, that an independent director (Pietro Guindani) be in charge of coordinating the negotiations for the Agreement, assisted by a legal advisor. It also recommended that the provisions of the Related party transactions procedure be adopted and, specifically, those covering negotiations for more important related party transactions.
Impregilo’s related party transactions committee, and especially the chairperson, Alberto Giovannini, was involved in the negotiations and provided its favourable opinion on 25 September 2012. Only one director from the minority list, Giuseppina Capaldo, voted against.
The corporate governance advisory board also monitored compliance with the recommended procedure and checked that the content of the Strategic Agreement provided adequate guarantees (not just in procedural terms but also in substance). It provided its favourable opinion thereon on 27 September 2012 with the adverse vote of just one director from the minority list, Giuseppina Capaldo.
On 12 December 2013, following the signing of the deed of merger between Salini S.p.A. and Impregilo S.p.A., Impregilo's Board of Directors approved the consensual resolution of the Strategic Agreement which was then finalised on 20 December 2013.