Corporations Act 2001

The proposed explanatory statement lodged under section 218 must be in writing and set out:

the related parties to whom the proposed resolution would permit financial benefits to be given; and

the nature of the financial benefits; and

in relation to each director of the company:

if the director wanted to make a recommendation to members about the proposed resolution—the recommendation and his or her reasons for it; or

if not—why not; or

if the director was not available to consider the proposed resolution—why not; and

in relation to each such director:

whether the director had an interest in the outcome of the proposed resolution; and

if so—what it was; and

all other information that:

is reasonably required by members in order to decide whether or not it is in the company’s interests to pass the proposed resolution; and

is known to the company or to any of its directors.

An example of the kind of information referred to in paragraph (1)(e) is information about what, from an economic and commercial point of view, are the true potential costs and detriments of, or resulting from, giving financial benefits as permitted by the proposed resolution, including (without limitation):

opportunity costs; and

taxation consequences (such as liability to fringe benefits tax); and

benefits forgone by whoever would give the benefits.

Sections 180 and 181 require an officer of a corporation to act honestly and to exercise care and diligence. These duties extend to preparing an explanatory statement under this section. Section 1309 creates offences where false and misleading material relating to a corporation’s affairs is made available or furnished to members.