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It is not uncommon for a potential investor in your company to want treatment that is slightly better than the rest of the company’s shareholders. For instance, they may wish to receive preference shares in return for their investment. As the name suggests, these shares rank higher and often come with more substantial rights than ordinary shares.

This article will discuss the different types of preference shares and how a company can introduce them into its capital. 

What is a Preference Share?

A preference share is one of the many types of shares that a company may offer to investors. Whilst the rights of the individual preference share may differ, their main characteristic is that they provide preferential treatment concerning insolvency. That is, in the event of the company winding up due to the inability to pay its debts, the holders of these shares will receive payment before the ordinary shareholders. 

Other standard features include:

  • receiving dividends ahead of ordinary shareholders or receiving higher dividends; 
  • receiving payment ahead of the ordinary shareholders in the case of an exit event; and 
  • Increase in voting rights at shareholder meetings.

It is important to remember that many classes of shares may be on the issue in a company, but not all of these are preference shares.

What Are the Different Types?

There are several different types of preference shares. These are outlined in the table below.

Convertible Preference SharesThe shareholder can convert their preference shares to ordinary shares at a certain time and by following a formula. If this occurs, the shareholder will lose their preferential rights.
Cumulative Preference SharesA company cannot pay the dividends they owe to shareholders, the dividends will accrue, and the company pays them when they are financially stable. Only after the cumulative preference shareholders receive their dividends will the ordinary shareholders receive payment.
Redeemable Preference SharesShareholders with redeemable preference shares may redeem them for cash at the company’s discretion.

How Do I Issue Preference Shares?

Section 254A of the Corporations Act 2001 (Cth) outlines a company’s power to issue preference shares. You can also find this information occasionally in the company’s constitution. A company’s constitution cannot override section 254A but can add additional steps. Therefore, checking that document to ensure you comply with the company’s governance requirements is important.

Issuing preference shares usually occurs when a new investor comes on board. Furthermore, you will likely negotiate the share’s terms with that party. At a minimum, the company and the investor must agree on the following about how these shares treat:

  • repayment of capital;
  • participation in surplus assets and profits;
  • cumulative and non-cumulative dividends;
  • voting;
  • priority of payment of capital and dividends about other shares or classes of preference shares.

Introducing the Preference Share

Once these matters are confirmed, the company can introduce the preference share into its share capital in one of two ways. The company can either:

  1. amend its constitution to set out the share’s rights (which requires a special resolution of the shareholders); or
  2. pass a special resolution outlining the shareholder’s approval of the new class of preferential shares.

What Do I Need to Consider When Purchasing a Preference Share?

When purchasing a preference share, there are several things to consider, including:

  • whether dividend rates are fixed or floating;
  • whether the dividend is ‘franked’ (this means the company issuing the dividend partially pays the taxation to avoid double taxation of the share); 
  • how and when the share will convert into ordinary shares; and 
  • how it will interact with ordinary shares in the company and any other classes of preference shares that the company may issue.

Key Takeaways

A company may choose to issue several different types of shares. Therefore, it is essential to remember that some of these may be preference shares. If they are, they will contain one or many rights that rank them above the other shares in the company, such as preferential treatment in the case of the company’s insolvency. To introduce a new class of preferential shares, the company needs shareholder approval and must set out (at a minimum) the information contained in section 254A of the Corporations Act 2001 (Cth).

If you have questions regarding preference shares, our experienced commercial lawyers can assist as part of our LegalVision membership. You will have unlimited access to lawyers to answer your questions and draft and review your documents for a low monthly fee. Call us today on 1300 544 755 or visit our membership page.

Frequently Asked Questions

Are all types of non-ordinary shares preference shares?

No. To be a preference share, it must rank above the other shares in the company in some way, for example, in the company’s insolvency.

What are the different types of preference shares?

There are many combinations of rights usually subject to heavy negotiation. However, the preference shares are cumulative, convertible or redeemable.

How does a company introduce a preference share?

A can introduce a preference share by including the information in section 254A of the Corporations Act 2001 (Cth), in its constitution or by having those rights approved by a special resolution of the company’s shareholders.

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