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To register and manage a company there are a number of documents that are required to be prepared. These include the company incorporation documents, company constitution and the memorandum of association. Professional legal advice in from a Commercial Lawyer may be beneficial to assist you in the preparation and understanding of these business documents.

In registering a company the application must state: the type of company proposed to be registered such as a public company limited by shares; proprietary company limited by shares; public company limited by guarantee; public unlimited company; proprietary unlimited company or public no liability company. You need to include the proposed name of the company (unless the Australian Company Number to be given by ASIC is to be used as the name); the registered address and the principal place of business (they may be different). You need to provide details of the members, including shareholders, directors and secretaries and their address. Share details need to be provided, whether they are fully paid or not and whether or not the shares are to be issued for a non-cash consideration. Where the company is to be one limited by guarantee, the proposed amount of the member's guarantee to which each member agrees in writing; and the state or territory in Australia in which the company is taken to be registered. Upon registration of a company (with ASIC), the company receives a certificate that states its name, ACN, company type, and the state and the date it is registered in.  A company comes into existence as a body corporate at the beginning of the day on which it is registered. Professional legal advice by a Commercial Lawyer may be advantageous to ensure that you follow the correct procedure in registering a company, particularly if it is complex.

If the company is to be a public company rather than a proprietary company then it may be required to have a constitution. A constitution is comprised of the memorandum of association as well as the articles of association. The articles can cover a myriad of topics, not all of which mandated by law. Some topics which may be included are the issuing of shares (also called stock), different voting rights attached to different classes of shares, valuation of intellectual rights, say, the valuations of the IPR of one partner and, in a similar way as how we value real estate of another partner, the appointments and remuneration of directors, directors meetings  and how they are to be conducted and what constitutes a quorum, how management decisions are reached, the transferability of shares, the special voting rights of certain executives, the dividend policy, how and when winding up should be instigated and confidentiality agreements such as for trade secrets and Intellectual property agreements. A memorandum of association is the document that governs the relationship between the company and the outside. It is basically a statement that the subscribers wish to form a company under the 2006 Act, have agreed to become members and, in the case of a company that is to have a share capital, to take at least one share each. This document is now no longer a requirement at law but it can still be prepared. Proper legal advice in from a Commercial Lawyer may be of great assistance in this regard.

The constitution as a whole contains the rules for corporate governance and is to be lodged on the application for registration. In a rare case persons proposing to apply for registration of a company may decide that the company's corporate governance will be adequately regulated by a series of rules stated in sections of the Corporations Act and designated as "replaceable rules". In that event the proposed company will not have a constitution on registration. Any constitution that a proposed proprietary company is to have does not have to be lodged with the application but will have to be lodged if the company, after registration, converts to a public company. Corporate law states that companies can either implement their own constitution, use the replaceable rules found in the Act, or have a combination of both in regards to the rules that will guide the internal management of the company. This document also contains the rules regarding the internal management of the company, the shareholder’s rights and conduct, how directors are appointed and remunerated, directors’ powers, and directors’ meetings. In addition companies can include object clauses within its constitution which outlines and restricts the activities in which the company may engage in. These clauses are not mandatory but may provide an indication regarding the nature of the business. A Commercial Lawyer  may be capable of reviewing and drafting of this document and can provide any advice necessary.

If you would like further information or wish to discuss your business document matter with us please do not hesitate to contact us by telephone on (02) 9233 4048 or by email to info@navado.com.au. 

 

 

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