VIC Help in Understanding Company Structure and Shareholder Allotment?

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18 June 2017
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Hi All,

Extremely new to this website and am looking forward to useful and beneficial responses.

I have conducted a fair bit of research myself and have gained somewhat an amount of knowledge regarding structure, as well as consulted with but I am still not confident in the entire process. So I am seeking help from the community to assist with clarity and direction on our journey. Many thanks in advance, and I am appreciative of your recommendations and guidance. I am not looking for any criticisms, just support and positive guidance.

Recently, I have had some new business opportunities come my way, and through the use of interested stakeholders, we are looking for the best way to set up an organisation along with good distribution of shareholders stakes and dividends.

To give you some background of where everything is at, below is details of the vision and the envisioned structure.

We are looking at a few different business ventures and we feel initial structure being crucial so we want to ensure it is done correctly.

Basically, we have three different ventures arising in three different industries. For this, we are looking at setting up three different entities: Company A, Company B and Company C. Each will have their own separate trading names, ABN's/ACN's and will operate independently from each other. These three companies are going to be Subsidiaries (which will be Pty Ltd's) to a Holding Company (which will also be a Pty Ltd Company)- which we can call Company X.


Company X is going the be the only shareholder in each of the individual subsidiaries, so Company X owns Company A, Company B and Company C entirely.

In addition to the above structure, there will be some overlaps of company directors in the three companies, Company A, Company B and Company C. That is, there may be a director of Company A, who is also a director of Company C, and vice versa. This is due to different expertise and specialties being shared throughout the different entities as required.

Company X (the holding company) will also have a director (most likely only one), and the director of Company X will also be a director of each of the other subsidiaries: Company A, Company B and Company C.

Now the reason we have determined this type of structure is to limit liability should it occur in one of the subsidiary companies. In regards to director salaries, this is not the topic of discussion and has already been decided upon reflected upon the company bylaws.

All profits generated by the subsidiaries are to feed back to the holding company Company X. Profits will then be distributed among the shareholders of Company X.

I am yet to understand the benefits of having this structure held in a trust arrangement, for this particular scenario. Any help on whether or not a trust would be recommended would be appreciated, as well as a representation of why it should be under a trust.

Now, as for the shareholders of Company X. There will be a total of six shareholders in Company X: Mr 1, Mr 2, Mr 3, Mr 4, Mr 5 and Mr 6. Each individual hold different proportions of ownership in Company X. But, it is viewed that Mr 1 hold as much as 51% to ensure total control and maintain ownership of this organisation due to him being the founder, and creator of the opportunities.

The other share holders, may or may not play as much of an important role, so their percentage stake will be an assortment of different fractions in comparison to some of the other shareholders.


For argument sake,


Mr 1 holds a 51% stake,

Mr 2 holds a 16% stake,

Mr 3 holds a 4% stake,

Mr 4 holds a 5% stake,

Mr 5 holds a 20% stake,

Mr 6 holds a 4% stake.


Although there is a diversified allotment of ownership, we are yet to establish how profits would be fairly distributed. That is, Mr 1 is not entitled to 51% of profits generated and so on. However, for example, we feel that if Mr 3 facilitates a significant 'deal' due to his directorship of Company C with an abundance of margin, that Mr 3 be rewarded for his efforts as a type of bonus. Then the remaining profit from that 'deal', be fed from Company C then Company X and disbursed among shareholders as dictated by whatever the bylaws stipulate.


In addition to this, we have also sourced an investor who is willing to back the organisation with a capital offering for the businesses funding needs who will refer to as Mr 5 with his 20% stake. Mr 5 however, will not hold Directorship in any entity, he will have involvement and/or understanding with the direction of the companies, he may even share his opinion on certain topics that arise, he won’t have voting rights, won’t be involved with any day to day operations, rather he will sit back and watch the company grow and collect profits over a period of time.

His equity is not required to be paid back as a loan, the only value he brings is providing working capital (essentially his buy in stake) to boost the business operation. Other shareholders will bring intangible assets to the table, filling their stake/interest in Company X. They will receive a share of profits (dividends) as dictated by the bylaws/company constitution.


The uncertainty lies around the following questions:


- Is this the correct way to structure this organisation?


- When registering the companies with ASIC; and, noting shareholders and directors, as required, how do we reflect the desired structure?


- Is there any concern when registering companies (as outlined above) with regards to investor capital and shareholders ownership percentages? That is, one shareholder (Mr 5) has bought into the company when the others haven't. Is it necessary to display the buy in amount as purchase of share in the company, or is this to be structured/displayed differently?


- Is this the right way to go about ensuring Mr 1 retains majority stake in all of this? The concerns lies that if, a dispute were to occur later down the track between shareholders and/or directors and shareholders and/or directors essentially gang up on Mr 1 and attempt to either take over control of the company, kick him out, out vote him or take directorship off of him, how does Mr 1 ensure this does not happen.


- Should a Trust structure come into play, and if so, How would it be reflected in this scenario? and Why?


- Are there any faults to this structure or amendments that need to be made?


- How does profit distribution get decided upon to be either evenly distributed or distributed on a fair basis. That is, profits may not be distributed 'evenly' because certain shareholders have such a minor stake and do not play much of a role in the grand scheme of things.


-How is voting declared or organised when decisions need to be passed?


-What element of control and voting unanimous does Mr 1 hold with his 51% ownership? How does this differentiate to certain decisions being made when engaging in a resolution and/or final verdict?


As you can see it is quite confusing and I hope you can understand our concerns and queries. Guidance and constructive opinions or insights are highly appreciated. As I mentioned earlier, we are looking at getting this correct from the beginning.


I look forward to hearing your responses and guidance on how to structure this correctly.
 

Rod

Lawyer
LawTap Verified
27 May 2014
7,129
958
2,894
Your situation is not unique or very difficult. It just needs more work. See below. Also recommend you get a lawyer to double check and look for loose ends, particularly in the constitutions and shareholders agreements.

Is this the correct way to structure this organisation?
There is no 'correct way'. Do whatever works for your situation.

When registering the companies with ASIC; and, noting shareholders and directors, as required, how do we reflect the desired structure? In your forms to ASIC.

Is there any concern when registering companies (as outlined above) with regards to investor capital and shareholders ownership percentages? See first answer.

Is it necessary to display the buy in amount as purchase of share in the company, or .....? No. Every share of the same class has the same nominal value.

Is this the right way to go about ensuring Mr 1 retains majority stake in all of this? The concerns lies that if, a dispute were to occur later down the track between shareholders and/or directors and shareholders and/or directors essentially gang up on Mr 1 and attempt to either take over control of the company, kick him out, out vote him or take directorship off of him, how does Mr 1 ensure this does not happen. Maybe. You need a shareholder agreement to supplement the company constitutions. Consider use of voting and non-voting shares a-la News Corp.

Should a Trust structure come into play, and if so, How would it be reflected in this scenario? and Why?
Can't answer this question.

Are there any faults to this structure or amendments that need to be made? Yes. Where is your shareholder agreement?

How does profit distribution get decided upon to be either evenly distributed or distributed on a fair basis. That is, profits may not be distributed 'evenly' because certain shareholders have such a minor stake and do not play much of a role in the grand scheme of things. Hmmm, potential issue here. Profit distribution should match shareholding. Possibly shareholding is not in balance if this is a concern.

How is voting declared or organised when decisions need to be passed?
?? Same as any other company - directors meetings and AGMs.

What element of control and voting unanimous does Mr 1 hold with his 51% ownership? How does this differentiate to certain decisions being made when engaging in a resolution and/or final verdict?
Get your constitution and shareholders agreement bedded down before registering anything. These documents will specify the level of control in conjunction with voting and non-voting shares.
 

Matthew Karakoulakis

Well-Known Member
27 October 2016
69
13
224
Hi Global_Domination,

Registering companies can sometimes be complex and challenging and it is best to have legal advice to save time and difficulties.

AMK Law can advise and help you with setting up your companies at competitive price. AMK Law has been providing comprehensive solutions to corporations and business owners for establishment of companies and advising them of legal rights and obligations for number of years.

Feel free to contact AMK Law on Matthew Karakoulakis, Lawyer, AMK Law - Melbourne, VIC - LawTap - Find a Lawyer & Book Online Instantly to arrange a time to discuss your situation.
 
18 June 2017
2
0
1
Your situation is not unique or very difficult. It just needs more work. See below. Also recommend you get a lawyer to double check and look for loose ends, particularly in the constitutions and shareholders agreements.

Is this the correct way to structure this organisation?
There is no 'correct way'. Do whatever works for your situation.

When registering the companies with ASIC; and, noting shareholders and directors, as required, how do we reflect the desired structure? In your forms to ASIC.

Is there any concern when registering companies (as outlined above) with regards to investor capital and shareholders ownership percentages? See first answer.

Is it necessary to display the buy in amount as purchase of share in the company, or .....? No. Every share of the same class has the same nominal value.

Is this the right way to go about ensuring Mr 1 retains majority stake in all of this? The concerns lies that if, a dispute were to occur later down the track between shareholders and/or directors and shareholders and/or directors essentially gang up on Mr 1 and attempt to either take over control of the company, kick him out, out vote him or take directorship off of him, how does Mr 1 ensure this does not happen. Maybe. You need a shareholder agreement to supplement the company constitutions. Consider use of voting and non-voting shares a-la News Corp.

Should a Trust structure come into play, and if so, How would it be reflected in this scenario? and Why?
Can't answer this question.

Are there any faults to this structure or amendments that need to be made? Yes. Where is your shareholder agreement?

How does profit distribution get decided upon to be either evenly distributed or distributed on a fair basis. That is, profits may not be distributed 'evenly' because certain shareholders have such a minor stake and do not play much of a role in the grand scheme of things. Hmmm, potential issue here. Profit distribution should match shareholding. Possibly shareholding is not in balance if this is a concern.

How is voting declared or organised when decisions need to be passed?
?? Same as any other company - directors meetings and AGMs.

What element of control and voting unanimous does Mr 1 hold with his 51% ownership? How does this differentiate to certain decisions being made when engaging in a resolution and/or final verdict?
Get your constitution and shareholders agreement bedded down before registering anything. These documents will specify the level of control in conjunction with voting and non-voting shares.


Thank you for your feedback and recommendations, I will be sure to review this and add to my planning of this structure.

Thank you again!