Sources of Funding, Funding Raising & Disclosure
Promoters and Pre-registration contracts
• Who is a promoter? o Whaley Bridge Calico Printing v Green – court has recognised the term promoter as not a term of law but rather one of business. o Emma Silver Mining v Lewis & Son – see Twycross case – used in connection with companies involves the idea of exertion for the purpose of getting up and starting a company and also the idea of some duty towards the company. o Jubilee Cotton Mills v Lewis – professional people, such as lawyers, accountants and bankers, are often involved in carrying out professional services during the incorporation of the company. They are not regarded as promoters if they act purely in their professional capacity in the ordinary course of their profession. o Active promoters – Twycross v Grant
 Any person who is actively involved, either playing a minor or central role, in organising the formation of a company falls within the definition of promoter.
 Typical activities associated with promoters –
 Negotiation of preliminary agreements
 Preparation of company’s constitution
 Identifying prospective directors and shareholders
 Preparation of the company’s fundraising documents (e.g. an offer info statement or profile statement or prospectus)
 Raising capital, either before or after incorporation
 Payment of registration fees; and
 Registration f the company with ASIC. o Passive promoters – Tracey Mandalay
 Also extends to people who are not directly responsible for incorporation; includes inactive persons who play a passive role in forming the company if they agree to share in the profits arising from the established company.
 Persons who leave it to others to get up the company upon the understanding that they also will profit from the operation may become promoters.
Promoter’s fiduciary duties and liabilities