Directors: Statutory requirements,appointment,_英语论文

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● 吕俊昭  Loo Choon Chiaw　Section 145 of the Act (hereinafter referred to as "Section 145") provides that every company incorporated in Singapore shall have at least two directors, one of whom shall be ordinarily resident in Singapore (hereinafter referred to as the "resident director"). It further providesthat notwithstanding any other provision in the Act, the company's memorandum and articles of association or in any other agreement between the resident director and the company, the resident director shall not resign or vacate his office unless there are remaining in the company at least two directors, one of whom shall be a resident director. Any purported resignation or vacation of office contrary to Section 145 shall be deemed to be invalid.　As the phrase 'ordinarily resident in Singapore' has not been defined in the Act, guidance must be sought elsewhere. The phrase 'resident in Singapore' in relation to an individual in the context of tax law has been defined in Section 2(1) of the Income Tax Act (Cap 134) as a person residing in Singapore, except for temporary absences as may be reasonable, and includes a person physically present or employed in Singapore for at least 183 days during the preceding year of assessment. In the light of the definitioncontained in the Income Tax Act, it is suggested that a person ordinarily resident in Singapore within the meaning of Section 145 ought to be a person maintaining a regular presence in Singapore with some degree of continuity, although he need not be a citizen or a permanent resident inSingapore. In practice, a person possessing a valid employment pass will qualify as a person ordinarily residentin Singapore and be in a position to act as a resident director in a Singapore company for the purpose of Section 145.　In the light of Section 145, there have been many instances where a resident director, one of the two directors appointed, wishes to resign from the office of director (for instance, when he is uncomfortable with the financial position of the relevant company) is nevertheless unable to do so because no one is willing to accept the appointment as director in his stead. He is thus compelled against his personal wishes to remain as a resident directorof a company. Those cases typically involve companies comprising only foreign shareholders and when the resident director and the foreign controlling shareholder are appointed merely to satisfy the statutory requirements of Section 145. The 'reluctant' resident director is in a precarious position. By the time he decides to resign, the situation would have become rather unsatisfactory. Quite frequently, all the foreign shareholders would have stopped funding the operations of the company by then and ceased allforms of communication with the 'reluctant resident director, leaving the latter in a lurch. The 'reluctant' resident director would then be obliged to continue to discharge his statutory duties whilst remaining a director on record, notwithstanding that he may have tendered his resignation as a director, as such resignation would be deemed invalid by virtue of Section 145. In the light of this, one should accept the appointment of a director only after careful consideration, taking into account the background, reputation and track record of the relevant company and its shareholders. One should also apprise oneself of the statutory duties of a director and be satisfied that one is in a position to discharge the same before accepting the appointment.　Section 145 requires the first directors of the company tobe named in the memorandum or articles of association of thecompany. The Act does not prescribe the exact manner in which directors are to be appointed. This is a matter which will be addressed in the articles of association of the relevant company. Ordinarily, the directors are elected by the shareholders at the annual general meeting.　Section 146 of the Act (hereinafter referred to as "Section 146") provides that a person shall not be named as a director unless he has manifested his intention to act as director by executing and lodging the prescribed Form 45 with the Registry of Companies and Businesses, declaring that he is not legally disqualified from acting and affirming his consent to act. A failure to observe the formality prescribed by Section 146 will result in the relevant person not appearing as a director on official record. Readers may recall from our previous discussions (See: Directors: Who are they? Lianhe Zaobao, October 4, 1998 ) tha
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