Director Appointment Requirement

Under the Companies Act, every Singapore company must have at least one company director who is an ordinary resident of Singapore. An ordinary resident is defined as any person who is a Singapore Citizen, Singapore Permanent Resident, Employment Pass or EntrePass holder.

Who can be a director?

Singapore allows both local residents and foreigners to be directors as long as they meet the following requirements:

• The individual is a natural person, meaning a director cannot be a corporation
• The individual is at least 18 years old

Who cannot be a director

There are several cases where a person may be disqualified from being a director of a company; these include:

• Being bankrupt
• Being convicted of criminal offenses that involve fraud or dishonesty
• Being disqualified by an order made by the court
• Being convicted of 3 or more filing related offenses under the Companies Act within a period of 5 years.
• Having 3 or more High Court Orders made against him or her compelling compliance with the relevant requirements of the Act within a period of 5 years.
• Having a company wound up for reasons of national security or interest

Once disqualified, the person will not be permitted to be a director or manage any local or foreign company unless the person seeks permission from the High Court. If the director has gone bankrupt, they must seek permission from the court official who is presiding over the bankruptcy, also known as the Official Assignee.

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Director Appointment Procedure

In general, directors are appointed through an ordinary resolution passed during a general meeting, however, the specific manner of appointment is dictated by the memorandum and articles of association of the company.

An ordinary resolution is a decision voted on by the shareholders of the company. Before an ordinary resolution can be passed, it must receive at least 50% of the votes cast at the general meeting. A company can pass an ordinary resolution through a physical meeting or by written means.

In most cases, before an ordinary resolution is passed, the board of directors has the power to appoint alternate or replacement directors who hold office until the next general meeting where they can be re-elected by the shareholders.

Before a director can be officially appointed, companies must first complete a series of documents and file an appointment of director notice with ACRA.

Documents required to Appoint a Director

1. A declaration of consent to act as a director using form 45
2. The director’s disclosure of all other directorships or shareholdings
3. A signed board resolution that approves the appointment

Filing an Appointment of Director with ACRA

For an incoming director who is considered an ordinary resident of Singapore, an existing director or the company secretary can file an appointment of director notice with ACRA online using BizFile. However, if the director is a foreign resident, the company is required to file the appointment of director through a registered corporate service provider.

Once the appointment has been filed with ACRA and the necessary fees are paid, the director is considered officially appointed.

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Resignation of Director

According to the Companies Act, a director may resign as long as there is still at least one director who is an ordinary resident of Singapore. Furthermore, the director must comply with the resignation procedure outlined in the company’s memorandum and articles of association. Typically, a director must give notice of their resignation in writing. The resignation letter must be sent by registered mail to the registered office of the company.

Once notified of a director’s resignation, the company is required by law to file a cessation of director with ACRA with 14 days. Similar to appointing a director, the company can file a resignation of a director through BizFile.

Removal of Director

In accordance with the Companies Act, a company director can be removed by an ordinary resolution of shareholders before the expiration of his or her period in office as long as it also complies with the memorandum and articles of association of the company.

Once a director has been removed, the company must file a removal of director notice with ACRA within 14 days. As with the appointment or resignation of a director, companies can file a removal of director notice through BizFile.

Register of Directors

Under the Companies Act, companies are required to maintain a register of directors that contains the following information for each director:

• Full name and any former name(s)
• Residential address or, at the director’s option, alternate address
• Nationality
• Identification
• Date of appointment and
• Date of cessation of appointment.

In addition, the Register of Directors must also include the following for each director:

• A signed copy of the declaration of consent to act as a director
• A statement that verifies the director is not disqualified from being a director of the company

The Register of Directors must be kept at the company’s registered address. However, if the company chooses to keep the register of directors at another location, they must notify ACRA of the location within 14 days of the Registrar being moved.

Powers of Director

The Companies Act states, “The business of a company shall be managed by, or under the direction or supervision of, the directors” and that, “The directors may exercise all the powers of a company except any power that [the Companies Act] or the constitution of the company requires the company to exercise in general meeting”.

In general, this means directors have the authority to make all decisions on behalf of the company unless the matter requires an ordinary or special resolution decided upon by a shareholder vote.

Examples of company decisions that can be made solely by the directors:

• Opening a bank account
• Borrowing or lending funds
• Investing company funds
• Selling company assets

Examples of company decisions that require a shareholder vote:

• Declaring Dividends
• Appointing and removing auditors
• Electing directors in place of retiring directors
• Alteration to clauses in the Constitution
• Reducing the share capital of the company
• Changing the company name

Duties of Director

A company is bound by the decisions of its directors. To ensure that directors make decisions in the best interest of their company, Singapore common law and the Companies Act mandate that directors fulfill both fiduciary and statutory duties.

Fiduciary Duties of a Director

With ultimate decision-making power, a director has an ethical and legal obligation to promote the financial well-being of the company. In upholding the fiduciary duties a director must:

1. Act in the best interest of the company: Directors are expected to give their undivided loyalty to the company. Therefore, all decisions should be made to benefit the interests of the company, while all personal and third party interest should be set aside.
2. Avoid conflicts of interest: Directors should do their best possible to eliminate situations where their own personal interests are in conflict with the interests of the company. Examples of conflicts of interest include:
   • Entering a transaction where the director stands to personally benefit at the expense of the company
   • Diverting business from the company to a competing business
   • Serving as a director for a competing business
3. Exercise care, skill, and diligence: Directors will be measured by the experience that they bring to the company and are expected to run the company to the best of their skill.
4. Not misuse their power and information: Directors are expected to only use the power and information vested in them by the company to benefit the company.

Statutory duties

Keep Accounting records: Under section 199 of the Companies Act, a director must ensure that accounting records are kept that demonstrate the financial health of the company. The records must be held in a location where they can be inspected easily by other company directors.

Maintain Annual Accounts: According to section 201 of the Companies Act, directors are required to submit financial statements to shareholders at least once a year at the company’s Annual General Meeting.

Hold Required Meetings: Directors are required to hold the following meetings that may vary based on the size of the company and the company’s business structure.

1. Annual General Meetings (AGM): All companies are required to hold annual general meetings at least once a year.
2. Statutory Meetings: Directors of Public companies are required to hold a statutory meeting within the first three months after starting business.
3. Extraordinary Meeting: Directors are required to hold an Extraordinary General meeting if requested by the shareholders who combined own a minimum of 10% of the shares in the company

Appointment of a Company Secretary: It is the duty of the directors to appoint a company secretary within six months of starting business.

Appointment of an Auditor: The director of a company must appoint an auditor or a committee of auditors within the first three months after incorporation.

Payment of Dividends: The directors of the company are entrusted with paying dividends from only the profits the company makes.

Issues of Shares: A director must ensure that shares of the company can be issued only after approval from the shareholders. Any shares issued without the approval of shareholders are considered void.

Duty to Disclose: As a part of a director’s fiduciary duties, she is required to avoid conflicts of interest. However, if a conflict arises, a director is obligated to disclose such interests to the company. Below is a list of conflicts of interest examples that must be disclosed according to the Companies Act.

• Interest in company transactions that create a conflict of interest: If a director stands to personally gain from a company transaction, the director must disclose his or her interest at a meeting of the directors that is recorded in the minutes.

• Ownership of office property that creates a conflict of interest: In certain cases, a director can personally gain from owning office property that is also valuable to the company. If such a conflict arises, the director is required to disclose his or her ownership of the office property to the company at a director’s meeting, which must be recorded in the minutes.

Liabilities of Director

A director who fails to meet their duties can face both civil and criminal penalties. Below is a non-exhaustive list of liabilities a director faces for each of their fiduciary and statutory duties.

For a breach of any of the four fiduciary duties, a company can do any of the following in civil court:

• Demand that the director pay for any damages incurred by the company
• Demand the director return any profits earned while in breach
• Declare any acts or decisions made by the director to be invalid

Similarly, a director in breach of their fiduciary duties can face the following criminal liabilities:

• A fine of up to S$5,000 or
• Up to 1 year in prison

Failure to Keep Accounting records: Under section 199 of the Companies Act, a director who fails to keep an accounting record faces a fine of up to S$2,000 and/or a prison sentence of up to 3 months.

Failure to Maintain Annual Accounts: According to Section 201 of the Companies Act, any director who willfully fails to maintain the annual accounts of the company faces a fine of up to S$10,000 or a prison sentence of up to 2 years.

Failure to Hold Required Meetings: Under section 174 of the Companies Act, a director of a public company who fails to hold a statutory meeting faces a fine of up to S$1,000 and a default penalty. Similarly, under section 175, a director who fails to hold an annual general meeting faces a fine of up to S$5,000 and a default penalty.

Failure to Appoint an Auditor: According to section 205 of the Companies Act, a director who fails to appoint an auditor faces a fine of up to S$5,000.

Payment of Dividends from a source other than profits: According to section 403 of the Companies Act, a director who issues dividends using a source other than profits can face a fine of up to S$5,000 and a prison sentence of up to 12 months. The director will also be liable to repay any creditors for any debt used to pay the dividend.

Issue of Shares without shareholder approval: Under section 161 of the Companies Act, a director who issues shares without shareholder approval may be liable to compensate the company and shareholder to whom the shares were issued.

Duty to Disclose: Under section 156 of the Companies Act, a director who fails to disclose their interest in company transactions or ownership of office property will face a fine up to S$5,000.

Nominee Directors

According to the Companies Act, a nominee director is a director who is, “accustomed or under an obligation whether formal or informal to act in accordance with the directions, instructions or wishes of any other person”.

For example, in order to fulfill the local director requirements, it is common for a foreigner who wishes to set up a company in Singapore to appoint a local Singapore resident to act as a nominee director.

Furthermore, a significant shareholder in a company may wish to appoint a nominee director to act on the shareholder’s behalf at director’s meetings.

Nominee directors have the same fiduciary and statutory duties as any other director, as well as the same influence over the company. However, the Companies Act requires additional compliance for nominee directors.

After the 2017 amendment to the Companies Act, nominee directors are required to disclose their directorship along with the particulars of their nominator to the company within 30 days of becoming a nominee.

In addition, nominee directors cannot share company information with their nominators unless they comply with the following:

• The nominee director has declared at a meeting of directors the name, and office or position held by the person whom the information is to be disclosed.
• The nominee director has also declared the particulars of the information which he intends to disclose.
• The nominee director has received authorization from the board before making such a disclosure.
• The nominee director must ensure that the disclosure will not in any way prejudice the company.

Additional Information

Keeping up-to-date on compliance and company law is an ongoing best practice for any company director.

For an exhaustive list of director specific law, please refer to the Singapore Companies Act. Lastly, for a legalese free version of how to be an effective company director in Singapore, refer to ACRA’s comprehensive guide.

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