Business Structuring.

Shareholders Agreements and Deeds

A shareholders agreement governs the relationship between the shareholders and the directors of a company. As no two businesses are the same, a shareholders agreement should be customised and cover all potential scenarios that your business may face. A shareholders agreement provides distinct advantages over the replaceable rules in the Corporations Act (a default set of rules for the internal management) or a standard form company constitution.

We can draft or review shareholders agreements and advise on the following:

issuing new shares;

sale of existing shares;

directors’ duties;

conduct of board and shareholders meetings; and

dispute resolution.

We can assist with drafting and reviewing shareholders agreements. In addition to shareholders agreements, we can provide assistance with drafting share subscription agreements, share vesting agreements, business or share sale agreements and employee share schemes. We can also advise on business structuring and assist with various tax topics.

Company Registration

Once you have decided to use a company structure to run your business, the first step is to incorporate your company. To incorporate a company, you must apply to register the company with the Australian Securities and Investments Commission (ASIC). The application involves providing information to ASIC about your appointed officeholders (the directors and secretary), how many shares there will be in the company and who will hold those shares.

It is important to set up the company correctly upon incorporation because it can be tricky to change the structure after it has been established.

We have registered many companies. We can assist you by:

advising you on the best corporate structure to match your plans for the business;

running checks on existing company names and trade marks;

applying to ASIC to incorporate the company and obtain an Australian Company Number (ACN);

applying for an Australian Business Number (ABN) and a tax file number (TFN);

registering a company for GST and PAYG withholding;

registering a business name; and

providing advice on whether a dual company structure (holding company and operating company) or discretionary trust structure is suitable.

We can also assist with company name changes, share structure amendments, appointing a new director of the company and drafting key company documents, including:

shareholders agreements (if you have more than one shareholder);

company constitutions; and

employment contracts.

Business Terms and Conditions

Business terms and conditions set out the rights and responsibilities of each party when entering into a transaction. Business terms and conditions are essential as they not only protect your business when a problem occurs but also minimise the likelihood of a dispute arising in the future.

Business terms and conditions will differ depending on the type of business you run.

An e-commerce business or online store will require sales terms and conditions. These terms and conditions would generally be provided online through a clickwrap (click and accept) agreement.

A business that provides services will need a client agreement or service terms which set out the terms under which it will provide its services to customers.

A marketplace business will need a set of marketplace terms and conditions which set out its relationship with its suppliers and customers, as well as any relationships between the two.

A software-as-a-service (SaaS) business requires a specific set of SaaS terms and conditions.

We have experience across a broad range of industries and sectors and can tailor your terms and conditions to the specific needs of your business. Our lawyers can also review your terms and conditions to ensure you are protected and comply with any obligations under Australian Consumer Law. If you run an online business, our Data and Privacy lawyers can also assist with drafting your website terms of use and privacy policy.

Discretionary Trusts

A discretionary trust is an asset ownership arrangement that some business owners and investors set up to assist with asset protection or tax planning. Discretionary trusts have the following benefits:

Asset Protection: If you are a director of a company, you have directors’ duties, and you could be held personally liable for breach of these duties, and for debts incurred by that company in certain circumstances (e.g. fraud and wilful negligence, and trading while insolvent) thus putting your personal assets (including any shares you own in your own name) at risk. Owning your shares through a trust rather than in your own name may offer some protection.

Tax Planning: Owning shares through a trust may be more tax efficient than owning the shares personally. This is relevant to income from payment of dividends, and to any capital gain on selling shares. The trustee has the discretion regarding the distribution of the trust income, including proceeds of a share sale amongst the beneficiaries.

If you are interested in discussing your business structure, or require assistance with setting up a discretionary or unit trust, we can assist. Our lawyers can advise on directors’ duties, draft trust deeds, assist with stamping trust deeds and establish a corporate trustee where required. We can also draft all related legal documents associated with establishing a trust, including consent forms and minutes of trustees.