You have asked what rules govern payments to directors.
A company’s constitution will almost always have a section dealing with the remuneration of directors, by way of fees or other compensation, payment for work above the normal duties of a non-executive director, reimbursement of expenses and retirement benefits.
However, payments to directors often requires shareholder approval because they are “related party benefits” (ie, a director is ‘related’ to the company) – see below.
Statutory Provisions
The Corporations Act has a ‘Replaceable Rule’ – section 202A – governing remuneration of directors, which says:
- The directors of a company are to be paid the remuneration that the company determines by resolution.
- The company may also pay the directors’ travelling and other expenses that they properly incur:
- in attending directors’ meetings or any meetings of committees of directors; and
- in attending any general meetings of the company; and
- in connection with the company’s business.
The fact that ‘the company’ determines the amount means shareholders must approve, not the directors themselves.
Also, sec 202B states that a company must disclose directors remuneration in the following situations:
- A company must disclose the remuneration paid to each director of the company or a subsidiary (if any) by the company or by an entity controlled by the company if the company is directed to disclose the information by:
- members with at least 5% of the votes that may be cast at a general meeting of the company; or
- at least 100 members who are entitled to vote at a general meeting of the company.
The company must disclose all remuneration paid to the director, regardless of whether it is paid to the director in relation to their capacity as director or another capacity.
- The company must comply with the direction as soon as practicable by:
- preparing a statement of the remuneration of each director of the company or subsidiary for the last financial year before the direction was given; and
- having the statement audited; and
- sending a copy of the audited statement to each person entitled to receive notice of general meetings of the company.
But if a proprietary limited company has a single director/shareholder, then under sec 202C:
A person who is the only director and the only shareholder of a proprietary company is to be paid any remuneration for being a director that the company determines by resolution. The company may also pay the director’s travelling and other expenses properly incurred by the director in connection with the company’s business.
Public Companies
Chapter 2E of the Act makes special provision for payments to public company directors. In particular, sec 211 states that shareholder approval must be obtained, unless
- the payment is ‘reasonable’ remuneration and that –
- remuneration should be considered whether or not reasonable in:
- the circumstances of the public company giving the remuneration; and
- the related party’s circumstances (including the responsibilities involved in the office or employment).
Similar reasonableness/shareholder approval provisions relate to giving retirement benefits – see Chapter 2D Division 2 of the Act.
Shareholder Approval
It is mandatory for stock exchange listed companies to obtain shareholder approval to pay/increase remuneration payable to Non-Executive Directors – see ASX Listing Rule 10.17 which says:
An entity must not increase the total amount of directors’ fees payable by it ………. without the approval of holders of its ordinary securities. This rule does not apply to the salary of an executive director. However, an executive director’s salary or
director’s fees must not include a commission on, or percentage of, operating revenue.
10.17.1 The notice of meeting must include the amount of the increase, the maximum amount that may be paid to the directors as a whole, and a voting exclusion statement.
10.17.2 If a non-executive director is paid, he or she must be paid a fixed sum.
AGM Resolution
A. Typical resolution for a Notice of Shareholders Meeting:
To consider and, if thought fit, pass the following resolution as an ordinary resolution, with or without modification:
“That in accordance with Listing Rule 10.17 of the Official Listing Rules of the ASX Limited and Rule 40.5 of the Company’s Constitution, the total aggregate annual remuneration payable to non-executive Directors of the Company be increased by $100,000 per annum, from $200,000 per annum to a maximum of $300,000 per annum.”
Notes:
The Company will disregard any votes cast on this Resolution by:
- a Director; and
- any associate of a Director.
However, the Company need not disregard a vote if:
- it is cast by a person as proxy for a person who is entitled to vote, in accordance with the directions on the proxy form; or
- it is cast by the person chairing the Meeting as proxy for a person who is entitled to vote, in accordance with the direction on the proxy form to vote as the proxy decides.
- Typical explanatory notes to accompany a Notice of Meeting:
In order for the total aggregate annual remuneration payable to Non-Executive Directors of the Company to be increased, Listing Rule 10.17 of the ASX Listing Rules and Rule 40.5 of the Company’s Constitution must be complied with. The ASX Listing Rules and the Constitution provide that the Company must not increase the amount of remuneration payable to Non-Executive Directors of the Company and its child entities unless Shareholders approve such an increase.
Additionally, Listing Rule 10.17.2 of the ASX Listing Rules provides that if Non-Executive Directors are paid, they must be paid a fixed sum. All Non-Executive Directors will be paid a fixed sum as determined at the sole discretion of the Board.
Currently the Non-Executive Directors of the Company are entitled to receive a combined maximum annual aggregate remuneration of $200,000, noting the Directors of the Company are entitled to apportion and distribute this aggregate Non-Executive Directors remuneration as they determine providing they do not exceed the aggregate amount previously approved by Shareholders.
The Non-Executive Directors of the Company receive the following
fees:
·
Chairman
$60,000
·
Directors
$36,000 each
such amounts being inclusive of any required superannuation payments.
In addition, there may be occasions when the Non-Executive Directors are required to perform services that fall outside the scope of their ordinary duties as a Non-Executive Director. In the event that the Non-Executive Directors are required to perform additional duties they are entitled, under the Company’s Constitution, to be paid for the performance of these additional duties. However, payments for the performance of additional services must also fall within the aggregate amount of remuneration for Non Executive Directors that has been approved by Shareholders.
The aggregate remuneration that may be applied to pay the Non-Executive Directors of the Company has remained unchanged and has not been increased since 2006, before the Company’s shares were quoted on the ASX.
Shareholder approval is sought to increase the total aggregate annual remuneration payable to Non-Executive Directors of the Company and its child entities from $200,000 to a maximum aggregate amongst all Non-Executive Directors of $300,000 (to be divided between Non-Executive Directors of the Company as the board determines).
It is important to note that in the current phase of activities being undertaken by the Company, particularly with one Non-Executive Director performing geological and field work, and the fact that the Chairman is currently acting as an executive, the Non-Executive Directors are undertaking additional duties to supplement the tasks being performed by employees and contractors, and such will require additional payments that are expected to exceed the current approved aggregate remuneration.
The Board considers that this increase in the total aggregate annual remuneration payable to Non-Executive Directors is necessary to provide an ability to increase the remuneration payable to the current Non-Executive Directors and any additional Non-Executive Directors who might join the Board. Further details on the remuneration paid to Non-Executive Directors are set forth in the Remuneration Report contained in the Directors’ Report section of the Annual Report.
The Company believes that all relevant information concerning Resolution 5 required in respect of Listing Rule 10.17 is included in the text, and accompanying notes, of this resolution in the Notice of Meeting.
*Originally written by Company Secretary, an Australian virtual company secretary service.