Company Constitution (for Pty Ltd)

Company Constitution (for Pty Ltd)

You’ve taken the leap and started a new company. Now write the rulebook on how it’ll run.

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Company Constitution (for Pty Ltd)

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When you’re done, print or download a PDF version for you to review, customise or sign.

What is a Constitution of a Pty Ltd Company?

A Constitution of a Pty Ltd Company is a contract that defines the rules by which a company operates and sets out the rights and duties of its members.

It works in tandem with or supercedes the Replaceable Rules in the Corporations Act 2001 (Cth).

When should I use a Constitution of a Pty Ltd Company?

This Constitution should be used if you’re a proprietary limited company that is about to register. Otherwise, your company will be governed by the Replaceable Rules.

This Constitution may also be adopted after registration, but must be done through a special resolution with the approval of at least 75% of your members.

What topics does a Constitution of a Pty Ltd Company cover?

  • Appointment of additional directors
  • Notice of board meetings
  • Voting by the board
  • Voting by shareholders
  • Voting rights for partly-paid shares
  • Pre-emption rights on issue of new shares
  • Non-voting employee shares
  • Boilerplate language

What are the main decisions I need to make in creating a Constitution of a Pty Ltd Company?

  • What is the maximum number of directors?
    The shareholders will have ultimate control over the composition of the board of directors, but the board itself will be able to appoint additional directors. The board will not be able to increase the number of directors above the maximum number set out by the Constitution.
  • What is the minimum number of directors needed to act?
    If the number of directors drops below this minimum, the company will not be able to act other than to appoint additional directors to meet this minimum or to call a shareholders meeting or propose a written resolution to the shareholders. 
  • How many hours notice do directors need to have before a meeting of the directors starts?
    This notice may be overlooked in cases of emergency or if all directors consent to shorter notice.
  • How will board votes be cast? 
    Typically, solutions of the board of directors are passed if a majority of the directors who are present and voting approve the resolution. Notice of the board meeting must be given to all directors, but not all of the directors will necessarily be present and voting.

    Alternatively, you can require that a board resolution will only be passed if it is approved by a majority of the appointed directors who are entitled to vote on it. 
  • How will votes by shareholders be cast?
    The typical approach with an ordinary shareholder resolution is that it will be passed if a majority of the votes actually cast are in favour of it, and a special shareholder resolution will be passed if at least 75% of the votes actually cast are in favour of it.

    Alternatively, you can require that an ordinary shareholder resolution will only be passed if it is approved by a majority of all of the votes that are capable of being cast on it. a special shareholder resolution will only be passed if at least 75% of the votes entitled to be cast on it are in favour.
  • Voting mechanism for partly-paid shares.
    Will you replace or apply statutory pre-emption rights on new share issues? Please note that section 254D only provides rudimentary rights and only apply to issues of new shares, not transfer of shares. If you require more detailed pre-emption rights, please contact us for legal advice.

What other names does a Constitution of a Pty Ltd Company go by?

A Constitution of a Pty Ltd Company is also known as: 

  •  Memorandum of Association
  •  Articles of Association
  • Memorandum and articles of Association
  • Company constitution
  • Checklist: Adopting A New Constitution

Frequently Asked Questions

The parties involved are members of the company.

Generally you would need this document when you are registering a new company and want to tailor the Replaceable Rules to your company’s specific requirements.

No. However, if your company does not have its own constitution, then the Replaceable Rules will apply by default.

Upon registration, ASIC will require you to choose between having your own constitution or using a combination of the Replaceable Rules and your own.

The Replaceable Rules give general protections, but your Constitution can be tailored to cover your particular circumstances.

  • Company details
  • Number of directors, voting mechanisms and notice periods
  • Know what is covered by the replaceable rules in order to effectively formulate the provisions of your Constitution of a Pty Ltd Company

There are several signing options available. How you sign largely depends on where the parties are located and if they will attend signing together. You can print on paper and sign, or use electronic signature tools such as Docusign or Hellosign.

If you need any assistance please contact us directly, we would be happy to assist

If you have any questions or are uncertain about any aspect of the document please do not sign it or use it, Please contact us directly and we would be happy to assist.

Absolutely! Get in touch with us and we can provide a fixed-fee price to review it.

Company Constitution (for Pty Ltd)
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