A public company did not approve special remuneration for office holders for a specific move in which the control holders had a personal interest and the control holders obligated to personally pay bonus to the office holders. A shareholder filed a motion for a derivative claim on behalf of the company.
The Court held that the law sets how remuneration of office holders is to be approved and one cannot circumvent such rules by private payment by the control holders. A covenant to pay a contingent remuneration by a control holder to an office holder for success of a move that is not yet finalized, outside of the remuneration policy approved by the company is problematic, damages the purity of the discretion of the office holder and cannot not be allowed, even if it is for the benefit of the company and all its shareholders, but certainly where the purpose of it is to promote a transaction in which the control holder has a personal interest. Because the office holders hold a duty of loyalty to the company, any benefit received as a result of their position is held by them in a constructive trust for the company and belongs to the company, just as were the case where an office holder received a bribe. Thus, the Court ordered the office holders and the control holders, jointly and severally, to transfer the office holders bonuses amount to the company.