The Memorandum of Association. 3. A company may, by special resolution, subject to con- Part I. firmation by the Supreme Court, alter the provisions of its Chap. 2. Memorandum of Association if it appears that the alteration is required in order to enable the company (a) To carry on its business more economically or efficiently; or more (b) To attain its main purpose by new or improved means; or (c) To enlarge or change the local area of its operations; or (d) To carry on some business or businesses which under existing circumstances may be conveniently or advantageously combined with the business of the company; or (e) To restrict or abandon any of the objects specified in the Memorandum of Association (Sec 162 of 1903). Forms. The Companies Act, 1903. Company Limited by Shares. Memorandum of Association of "The Company, Limited.” Alterations II. The objects for which the company is established are Objects. as follow:— I. The Primary or Main Objects. A.-SPECIFIC PRIMARY OBJECTS. 1. To acquire and take over as a going concern the business of (here state nature of business in its various branches) now carried on by at in the County of under the style or firm of together with all of the assets and liabilities of the proprietors of that business used in connection therewith or belonging thereto, and to undertake and satisfy all the liabilities of the said business, and with a view thereto to enter into and carry into effect with or without modifications the agreement which has already been prepared and is expressed to be made between of the one part and this company of the other Part I. Objects. The Memorandum of Association. part, a copy whereof has for the purposes of identification been sub- 2. To acquire, take over, and amalgamate the undertakings of and with a view thereto to enter into and carry into effect, &c. (See previous clause.) B.-GENERAL PRIMARY OBJECTS. General Powers of Acquiring and Carrying on Businesses and 3. To carry on the business of (here state fully and in detail any business contemplated by the promoters) in any part of the colony of New Zealand. 4. To carry on any other business or businesses which may seem to the directors or the company capable of being conveniently or profitably carried on in connection with any of the objects for which the company is established or which may seem as aforesaid calculated directly or indirectly to enhance the value of any part of the company's undertaking, assets, property, or rights. 5. To acquire and undertake the whole or any part of the business, goodwill, assets, property, rights or undertaking of any person, firm, or company carrying on or having power to carry on any business which this company is authorised to carry on by any specific or general clause of this Memorandum expressly or by implication and as part or whole of the consideration therefor to undertake all or any of the liabilities of such person, firm, or company, and to give or accept by way of conconsideration for any of the acts or things aforesaid or for anything acquired as aforesaid any cash, shares, debentures or securities that may be agreed upon. See N.Z. Flourmillers' Association v. Timaru Milling Co., 20 N.Z. 650. As to the advisability of substituting this clause for clause authorising the acquisition of a specific business, see p. 26 supra. 6. Generally to purchase, to take on lease or in exchange, hire, or otherwise acquire any real and personal property and any rights or privileges which the company may think necessary or convenient for the purposes of its business or businesses, and in particular any land, buildings, easements, rights of way, restrictive covenants, machinery, plant, and stock-in-trade. 7. To subscribe or apply for, and take or acquire by purchase or otherwise, and hold shares or debentures or securities of or other interests in any other company having objects, whether primary or The Memorandum of Association. ancillary, altogether or in part similar to any of the objects of this Part I. company or carrying on any business, or established or empowered to Chap. 2. carry on any business which this company is empowered by any specific or general clause of this Memorandum expressly or by implication to Objects. acquire, undertake, or carry on. See N.Z. Flourmillers' &c. v. Timaru Milling Co., 20 N.Z. 650. 8. To apply for, purchase, or otherwise acquire and protect or renew, or join with any other person or company in so doing, whether in the colony of New Zealand or in any part of the world any patents, brevets d'invention, patent rights, protections, licenses, concessions, methods or secrets of manufacture, and the like, conferring any exclusive or non-exclusive or limited right to use, or any secret or other information as to any invention which may seem to this company capable of being used for any of the purposes of the company, or the acquisition of which may seem to this company calculated to directly or indirectly benefit this company and to use, exercise, develope, manufacture under, or grant licenses or privileges in respect of, or otherwise turn to account the property rights or information so acquired, and to expend money in experimenting upon or seeking to improve any patents, rights, methods or inventions which the company may acquire or propose to acquire. 9. To enter into any partnership or into any arrangement for sharing profits, or for co-operation, or for limiting competition, or for mutual assistance, or for union of interests, joint adventure, reciprocal concession, or otherwise, with any firm, person, or company having objects, whether primary or ancillary, altogether or in part similar to those of this company, or engaged in, or carrying on, or established for the purposes of carrying on, or empowered to carry on, any business or transaction which this company is authorised by any specific or general clause of this Memorandum expressly or by implication to carry on or engage in, or any business, transaction, venture, or undertaking which may seem to this company capable of directly or indirectly benefitting this company. 10. To amalgamate with any other company having objects or powers, whether primary or ancillary, altogether or in part similar to those of this company, and to give or accept by way of consideration for such amalgamation, any payment of cash or any agreement for periodical payments of cash, secured or unsecured shares wholly or partly paid up or with liability for the full nominal value thereof, stocks, bonds, obligations, debentures, debenture stock, scrip, or securities of any person, company, or corporation, and whether of the company or corporation with which such amalgamation is effected or not. See N.Z. Native &c. Co. v. Jackson, 6 N.Z. 549. 11. To acquire or obtain from, or make any arrangement with any government or authority supreme, municipal, local or otherwise, or any corporation, company, or person for, any authority, right, privilege, concession, contract or charter which this company may think it desirable to obtain, or which may seem to this company conducive to Part I. Objects. The Memorandum of Association. any of the objects of this company, and to accept, make payments under, carry out, exercise, and comply with any such arrangement, authority, right, privilege, concession, contract, or charter. General Powers of Disposing of Rights and Properties. 12. To sell, lease, exchange, bail, grant licenses in respect of, or otherwise deal with or dispose of the company's undertaking or any part thereof or any property or interest in any property, rights, concessions, or privileges belonging to this company or over which this company shall have any right or power of disposal either together or in portions to any firm, person, company, or corporation for such consideration or premium as this company may think fit, and in particular wholly or partly for cash or wholly or partly for periodical payments of cash secured or unsecured, shares wholly or partly paid up, or with liability to pay the full nominal value thereof, stocks, bonds, obligations, debentures, debenture stock, scrip, or securities of any person, company, or corporation, and whether of the person, company, or corporation acquiring the interest so disposed of or otherwise. As to the advantages of this clause see Doughty v. Lomagunda Reefs, 1902, 2 Ch 837. A company may sell the whole of its undertaking under this clause without first going into voluntary liquidation, but it cannot distribute the proceeds of such sale among its members without first going into voluntary liquidation, as such a distribution would be a return of capital to members, and ultra vires under any provision of the Memorandum. Where a company sells part of its property or undertaking it may, if so authorised by its Memorandum and Articles, distribute the proceeds of such sale among its members without going into voluntary liquidation provided it retains capital assets equal to its paid-up capital and liabilities: Lubbock v. The British Bank dc., 1892, 2 Ch. 198. Division of Profits and Property among Members. 13. To divide among the members of this company from time to time whatever the company may decide to be the profits arising from the operations of the company or any part of such profits. This clause has not hitherto been usual, but as to the advisability of inserting it, see chapter on Profits and Dividends infra. What is profit is a matter of opinion on which business men may differ. This clause clearly cannot authorise a return to members of what is undoubtedly capital. 14. To divide as profits among the members of the company the proceeds of any disposal or realisation of any part of the property or assets of the company which, in the opinion of the company, may fairly be considered and treated as accretions to capital. See Lubbock v. The British Bank of South America, 1892, 2 Ch. 198; Verner v. The General dc. Trust, 1894, 2 Ch. 239. 15. To divide as profits among the members of the company the net annual income to be derived from the exhaustion of any wasting asset of the company without any obligation on the part of the company to provide for loss on any previous years' operations. See chapter on Profits and Dividends infra. See Sec. 52 of 1903. The Memorandum of Association. 16. To divide any property of the company or any cash or any shares, Part I. stock, bonds, obligations, debentures, debenture stock, scrip and securities Chap. 2. the property of this company, or of which this company may have the power of disposing, whether or not the same be the proceeds of any sale, Objects. lease, exchange, bailment, license, or other disposal or amalgamation as mentioned in clauses 10 and 12 hereof, or otherwise belonging to the company among the members in specie or in kind according to their respective rights. See note to clause 12. II. - Ancillary Powers. C.--FINANCIAL POWERS AND APPLICATION OF THE COMPANY'S FUNDS. 17. To borrow or raise money or secure the payment of money Ancillary owing or the satisfaction or performance of any obligation or liability powers. incurred or undertaken by the company in such manner as the company may think fit, and in particular by the issue of debentures, debenture stock (perpetual or redeemable), or by mortgage or charge or lien upon the whole or any part of the company's property or assets (whether present or future) including its uncalled capital, and to purchase, redeem, or pay off any such securities. 18. To make, draw, accept, endorse, discount, execute, and issue bills of exchange, promissory notes, bills of lading, dock or other warrants, debentures, and any other instruments negotiable or transferable by delivery or to order or otherwise. 19. To lend and advance money or give credit to such persons and on such terms as may be thought fit, and in particular to customers and persons dealing with the company, and to give guarantees or become security for the payment of moneys or the performance of contracts or obligations by any such persons. A guarantee to shareholders is not a reduction of capital: Bank of N.Z. v. Guthrie, 16 N.Z. 484. 20. To invest and deal with the moneys of the company not immediately required in such manner as may from time to time be determined, and in particular to invest the same on mortgage or purchase of real, leasehold, or personal property, shares or securities, or by depositing the same with any bank, company, firm, or person at interest, and such investments from time to time to vary. 21. To use any reserve fund created from accumulated profits or from the issue of shares at a premium as part of the company's capital without capitalising the same. See Bouch v. Sproule, 12 A.C. 385. 22. To remunerate any person, firm, or company for services rendered to this company, or to pay for any properties, rights, privi*leges, concessions, or any other thing or interest acquired by this company by cash payment or by the allotment of shares, debentures, debenture stock or other securities of the company partly or wholly paid up or otherwise. |