The Pre-Incorporation Founders Agreement is essential for Australian entrepreneurs and business founders who are in the process of establishing a new company but need to formalize their relationship before official incorporation. This document is particularly crucial in scenarios where founders need to work together, contribute resources, or develop intellectual property before the company is formally established. It addresses key aspects such as ownership structure, capital contributions, roles and responsibilities, and decision-making processes, all while operating within the framework of Australian corporate law, particularly the Corporations Act 2001. The agreement helps prevent future disputes by clearly documenting all parties' expectations and commitments, and typically includes provisions for the transition to a formal shareholders agreement upon incorporation.
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1. Parties: Identifies all founding members who are parties to the agreement
2. Background: Outlines the context, intended business venture, and purpose of the agreement
3. Definitions and Interpretation: Defines key terms and establishes rules for interpreting the agreement
4. Business of the Proposed Company: Details the intended business activities and objectives of the future company
5. Incorporation Commitment: Sets out the founders' commitment to incorporate the company and associated timeframes
6. Roles and Responsibilities: Defines each founder's roles, duties, and commitments pre and post-incorporation
7. Capital Contributions: Specifies initial capital contributions and shareholding structure upon incorporation
8. Intellectual Property: Addresses ownership and transfer of IP developed before incorporation
9. Confidentiality: Establishes confidentiality obligations regarding business information
10. Decision Making: Outlines how decisions will be made during the pre-incorporation period
11. Expenses and Financial Management: Details how pre-incorporation expenses will be handled and recorded
12. Duration and Termination: Specifies agreement duration and circumstances for termination
13. Dispute Resolution: Establishes processes for resolving disputes between founders
14. General Provisions: Contains standard boilerplate clauses including governing law and notices
1. External Investment: Include when founders anticipate seeking external investment pre-incorporation
2. Founder Vesting: Include when implementing vesting schedules for founder shares
3. Non-Competition: Include when founders have other business interests or require specific non-compete provisions
4. Insurance: Include when specific insurance requirements are needed pre-incorporation
5. Founder Exit Provisions: Include detailed exit mechanisms when founders want specific pre-incorporation exit rights
6. Third Party Rights: Include when third parties may have specific rights under the agreement
7. International Operations: Include when business will operate across multiple jurisdictions
1. Schedule 1 - Founder Details: Complete details of all founders including contact information and qualifications
2. Schedule 2 - Business Plan: Detailed business plan and proposed company structure
3. Schedule 3 - Capital Contributions: Detailed breakdown of each founder's capital contributions (cash, assets, services)
4. Schedule 4 - Intellectual Property Register: List of existing IP and developed IP to be transferred to the company
5. Schedule 5 - Roles and Duties: Detailed description of each founder's roles, responsibilities and time commitments
6. Schedule 6 - Reserved Matters: List of decisions requiring unanimous or special majority consent
7. Appendix A - Pro-forma Shareholders Agreement: Draft shareholders agreement to be adopted upon incorporation
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