Background

The new Companies Act replaces the memorandum and articles of association of the old Act with a single memorandum of incorporation which may be supplemented by optional governance rules.  A properly drafted memorandum of incorporation aligned with the needs of particular clients will enable their company to benefit from the opportunities created by the new Act and avoid being caught in some of its unexpected pitfalls.
 

Pre-existing companies are also subject to the provisions of the new Act, although they enjoy some relief during the two-year transitional period.  While it is not true that all pre-existing companies have to adopt a new-style memorandum by May 2013, it is nevertheless prudent for them to consider whether and to what extent changes are called for or may be advantageous.

Structuring of relationships

Gone are the days when a company's memorandum was a straightforward form and the standard set of articles in Table A or B worked well for most companies. The new Companies Act allows considerable freedom in structuring the relationships between a company, its directors and the holders of its shares and other securities. As many aspects can be regulated only in the memorandum and because neither governance rules nor shareholder agreements may conflict with the memorandum, the importance of a suitably drafted memorandum is evident.

Aim

The aim of this seminar is to provide -

• an overview of important aspects of the new Companies Act that have a bearing on the drafting of memoranda of incorporation
• a detailed analysis of the specific provisions pertaining to the memorandum of incorporation
• an exposition of the various options presented by the prescribed forms
• guidelines for drafting a unique form of memorandum of incorporation
• an explanation of the implications for pre-existing companies

Frequently asked questions

The following questions will be discussed -

• Are all companies really required to adopt a new memorandum by May 2013?
• When is it a good idea to base the memorandum on one of the prescribed forms?
• What if a prescribed form does not meet the requirements of the Act?
• What must, may and may not be included in a memorandum?
• What is a "restrictive condition" and what is the meaning and effect of "RF" at the end of a company's name?
• What should be included in the memorandum as opposed to the governance rules or a shareholder agreement?
• How will the anti-avoidance provision apply to provisions in a memorandum?
• What contractual rights can be created in a memorandum?

Who should attend?

Attorneys, advocates, auditors, accountants, financial and legal advisers, chief executive officers, directors, shareholders and owners of businesses

Presenter - Prof Kathleen van der Linde

Prof Kathleen van der Linde is the head of the Department of Mercantile Law at the University of Johannesburg.  She holds the degrees of B-Juris, LLB and BAHons (Latin) from Potchefstroom University (now North-West University) and an LLM and LLD from the University of South Africa.  In addition to teaching corporate law to undergraduate and LLM students, she presents the Diploma in Corporate Law at UJ, and is involved in the Advanced Corporate Law and Securities Law programme offered by the Centre for Business Law at Unisa.
 

Kathleen acquired an extensive knowledge of the new Companies Act through developing a comprehensive guide and a 15-hour seminar series entitled "Getting to Grips with the New Companies Act". She has presented this as in-house training for several leading law and accountancy firms and corporate legal divisions and also through UJ on three occasions, to address the demand in the general market. She has also presented workshops on selected aspects of the new Act, particularly business rescue, to various practitioner groups. On the research front, Kathleen has contributed several journal articles on the corporate finance provisions of the new Companies Act.