Fundamentals of shares and share capital

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Profit making ventures are usually registered as companies limited by shares or unlimited companies. A company is limited by shares when the liability of shareholders of the company is limited to the amount, if any, unpaid on the shares held by them. In the case of unlimited companies, the liability of the shareholders is not limited to any unpaid amount for shares held by them. Thus the shareholders of an unlimited company are fully liable for the debts of the company no matter the amount involved. There are various ways a company can raise capital for its operations. Issuing shares is one of the ways capital can be raised.

What is a share?

A share is a unit of a company that defines the interest of a shareholder in the company measured by a sum of money. It represents a portion of a company’s share capital and confers certain rights and liabilities on the shareholder. The Nigerian Companies and Allied Matters Act defines shares as’ interests in a company’s share capital of a member who is entitled to a share in the capital or income of the company’. Thus a share represents a unit of a bundle of rights and liabilities which a member or shareholder has in a company as provided in the term of issue i.e. the articles of association of the company. A share is a chose in action (intangible property which gives the owner a right of action for possession) and it is a transferable property subject to any restrictions that may be provided in the articles of association or under the law.

Rights and liabilities attached to shares

A shareholder is entitled to vote in the proceedings of company meetings, receive dividend whenever dividend is declared, attend meetings and contribute to the affairs of the company, inspect company’s statutory books, protect proprietary interest in the management of the company. The Nigerian Companies and Allied Matters Act, 2004 prohibits issuance of shares with no right to vote or a right to more than one vote except in the case of preference shares. It is an offence under the law to issue a share with no vote or more than one vote. On the other hand, a shareholder is liable to pay for shares held and unpaid for upon winding up of the company where the company is limited by shares. In the case of unlimited company, the shareholder is liable for the full debt of the company. A shareholder is also liable to forfeit shares upon failure to honour a call to pay up in respect of any unpaid shares and suffer any penalties stipulated in the articles of association or term of issue.

How to acquire shares in a company

Shares in a company can be acquired by any of the following ways: subscription, allotment, transfer or transmission. Subscription refers to the signing of the memorandum and articles of association during the incorporation of the company whereby at least one share is taken up by each member or shareholder signing for a company to be formed. Upon registration of the company, the subscribers are deemed to have agreed to become members of the company and their names must be in the register of members.

Allotment is the allocation of a specific number of shares in a company to an applicant or prospective shareholder upon an application for such shares. The company may allot all or part of the shares applied for by a prospective shareholder. A prospective shareholder can also withdraw his application by written notice to the company any time before allotment is done. Upon application, the company shall, where it wholly or partly accepts the application, allot shares to the applicant and notify the applicant of the allotment and the number of shares allotted within forty-two days. The company is not bound to allot the full amount of shares applied for but it is bound to write a letter of regret enclosing the balance of money paid for shares not allotted. Where shares have been allotted, the company is required to file a return on allotment of shares with the Corporate Affairs Commission within one month of allotment in the prescribed form and with the necessary supporting documents. If you have ever applied to buy shares of a public companies through public offer, this is what happens at the close of the public offer.

Shares of a company can also be acquired by transfer. Transfer of shares is the process of passing ownership from one person to another. It is executed by the delivery of a proper instrument of transfer and the share certificate to the company and the subsequent registration of the transferee in the company’s register of members. A company is required to file a notice with the Corporate Affairs commission indicating transfer of shares. Transfer of shares in a company are subject to any restrictions by law or the articles of association. Every private company is required by law to restrict the transferability of its shares in its articles of association. This is done by including a ‘pre-emptive right’ clause to the effect that any shareholder who wishes to transfer his shares should first offer such shares to existing shareholders before any other person who is not a shareholder.

Transmission of shares is the process of acquisition whereby a person becomes entitled to the shares of another in consequence of death or bankruptcy of that other person who was the original shareholder. In the case of death, the shares could either be transmitted by a will or where there is no will, letter of administration of estate of the deceased original shareholder. A person who takes up shares of another by transmission would be required to communicate same to the directors of the company showing evidence of such transmission and could either choose to have the transmitted shares registered in his own name or in the name of a nominated person. Registration of the name of the person to whom shares have been transmitted in the register of members after all requisite formalities, grants such a person full rights as a member of the company.

Classes of shares

There are various classes of shares that could be issued by a company. These are ordinary shares, preference shares, deferred shares and founders’ shares. The nature of the shares would depend on the kind of rights attached to them. Ordinary shares are the basic shares of a company which have no special rights attached and which bear the main risk. They are sometimes referred to as ‘equity shares’. Majority of the shares in most companies are ordinary shares which have the basic rights attached to a share.

Preference shares are those shares that have additional rights attached to them and they could take various forms.  Fixed preference shares entitle the holder to a fixed amount of dividend every year. Fixed right to participate in surplus profit entitles the holder of such shares to additional dividend after the fixed amount of dividend. Thus where there is surplus, they benefit further with the ordinary shareholders.

Cumulative preference shares entitle the holder to dividend every year whether or not profits are declared by the company. Where no profit is declared in a particular year, the dividend accumulates and adds up to that of the following year such that whenever there is profit and dividend is declared, this class of shareholders get their dividend that has accumulated over time in addition to what is currently due them.

In the case of Non-cumulative preference shares, where a dividend is not declared and paid in a particular year, such dividend is lost.

Deferred shares are shares on which no dividend is payable until other classes of shares have received a minimum dividend. Preference shares could be stated as non-voting (holders would not be entitled to attend meetings or vote) and could also be expressed to be redeemable as a term of issue. The right of redemption would usually be set out in the articles of association of the company.

Redeemable share is one issued on the terms that the company will or may buy them back at a future date. Founders’ shares and Management shares are shares with special rights attached for the benefit of the original subscribers and management of the company respectively in order to retain some measure of control over the company. They are not popular in Nigerian corporate practice.

What is share capital?

Share capital refers to the funds raised by a company by issuing shares for cash or other considerations. At the time of incorporation of a company, the share capital would normally be stated in the memorandum of association and issued to the first subscribers. Further issue of shares can be made in future to raise more capital, provided it is within the stipulated maximum amount authorised by the articles of association. Thus the authorised share capital refers to the maximum value of the shares that a company can legally issue.

Authorised share capital of a company could be issued, unissued or reserved. Issued share capital is the portion of a company’s share capital that has been taken up by shareholders. The Dictionary of Company law describes issued share capital as the nominal value of shares actually issued. The shares may have been paid for in full, in instalments or unpaid for. Unissued share capital is the portion of a company’s capital that has not been issued to any shareholder. Where shares are unpaid for, the shareholder could be called upon to pay for those shares in accordance with the terms stipulated in the articles of association of the company. This is referred to as a ‘call on shares’ which is a formal request by a company to the shareholders to pay for shares they have taken up. Where a company goes into liquidation, the shareholders who have unpaid shares would be liable for the debts of the company to the extent of the amount owed for the shares taken up by them.

Reconstruction and Alteration of share capital

Reconstruction of share capital is the process of reconstituting the shares such that the value of each share is either increased or decreased. However, this does not affect the total value of the share capital. Reconstruction could either be by way of consolidation or subdivision. Consolidation of shares is the process of reconstituting shares of a certain denomination to a greater denomination so that the value of each share is higher than the original value. For example existing 10,000 shares of 10k each can be reconstituted into 1000 shares of N1.00 each. Consolidation is usually undertaken to reduce the number of shares in issue while increasing the nominal value. The purpose is to increase the share price of the company.

Consolidation could also be undertaken to meet the minimum trading bid size to ensure its listing status on the stock exchange (in the case of a listed public company). Subdivision is the opposite of consolidation where shares of a certain denomination are reconstituted into a lesser denomination. Example existing 10,000 ordinary shares of N1.00 each can be subdivided into 20,000 shares of 50k each. Subdivision is undertaken to increase the number of shares in issue while reducing the nominal value of each share .Subdivision would usually be embarked upon to improve liquidity and trading activity on the shares by making the shares more accessible and affordable and thereby increase shareholder base. Reconstruction applies to shares that have been issued.

The share capital of a company can be altered in various ways:

Cancellation of shares is the process of cancelling unissued i.e. shares that have not been taken up or shares that are yet to be issued. The effect is to reduce the authorised share capital by the amount of shares cancelled. Share capital could also be altered by an increase or decrease in the authorised share capital after the necessary amendments have been made to the articles of association of the company. An increase in authorised share capital requires the creation of new shares which will normally be issued to rank in similar status i.e. pari passu as the shares already in existence. In the case of reduction, the issued share capital of a company is decreased by any of the following means: extinguishing liability on any unpaid shares so that the holder of the balance is excused from paying. For instance, if a company has issued 1,000,000 ordinary shares of N1 each of which N750,000 has been paid up, the balance of N250,000 could be extinguished thereby reducing the share capital to N750,000.

Reduction could also take place by cancellation of any paid up share capital which is lost or unrepresented by available assets. For instance if the value of net assets of the company is N1m and the share capital is N750,000, the share capital could be reduced to reflect the realistic value of assets but nothing is returned to shareholders who have paid N250,000 more. The third form of reduction in share capital is the cancellation of any paid up share capital in excess of the company’s needs in a manner similar to the second form of reduction above. In all cases of reduction, the share capital must have been issued. It may be paid up or unpaid. Reduction of share capital must be distinguished from cancellation of share capital earlier mentioned. A company can only cancel part of its unissued share capital while in the case of reduction; it is the issued share capital that is dealt with.

Hope you learnt something from this. Comments are welcome anytime.

23 thoughts on “Fundamentals of shares and share capital

  1. Have googled many sites but nowhere did i find info about what conditions qualify to term a SHARE as share. In a book i read certain properties characteristic of a SHARE such as an ordinary fully paidup SHARE IS NOT A SHARE unless paid for. There are other conditions too but experts seem to avoid this point fr discussion. Kindly explain

    1. Thank you for your comment. A share as already stated is a unit of a company that is used to define how much interest a shareholder has in that company. The kind of right attached to a share will determine whether it is an ordinary share or not. Whether a share is ordinary, fully up or not in real sense is not a characteristic feature. A share remains a share whether it has been paid for or not. It is basically a unit of measuring ownership. In terms of features, a share is an intangible asset. It is a ‘chose in action’ which means the law recognises rights attached to it and it gives the owner a right to sue even though the owner is not physically in possession of the share in the way a person is physically in possession of a car for example.

      1. Thanks fot your attention but the definition of a share is not clear yet. What i wanted to know is UNDER WHAT CIRCUMSTANCES CAN YOU CHALLENGE THE VALIDITY OR STATUS OF A SHARE? For example a fully paid up share cannot be an unpaid or partially paid share. If such a share is not paid or partially paid then what are legal implications on that share? My question is primarily in regard to a private limited company with shares.

      2. Another question is: Can a company registrar reject a private company’s annual return of shares and other essential forms from registration pending litigation between a share holder and another share holder plus company pending in duperior courts? Doesnt that mean the business of the company is being stayed for the primary fault of two share holders over transfer of shares??

        One more: Can ordinary fully paid up shares of a family private company be transferred VERBALLY to another relative shareholder as per precedent .and without consideration ? ..all shareholders being siblings and nominee ostensible owners of their father being the real owner? Here such matters are covered by BENAMI laws of Pakistan.

      3. I don’t think any share of a company has a validation unless it has been paid for in cash or kind. Moreover, it must be backed by Share Transfer certificate signed by both seller and buyer of a share. Shareholders are also issued scrips and their names and kinds of shares held by them are declared via annual share return to the company registrar.
        Payment is an essential ingredient of share acquisition.

  2. Under Nigerian company law, if you have not fully paid up your share and the company makes a call for payment, failure to pay could lead to forfeiture so you could loose any unpaid share. But that can only happen if the company made a formal call for shares through the due process. For the second question, A company registrar may be restrained from acting while a matter is pending. There may be an injunction against the Company registrar or the CAC for instance from taking any action until litigation is concluded. If there is a court order, company business has to be stayed. Third question: shares of a company can not be transferred verbally. There must be an instrument of transfer under Nigerian company law but the law is silent as to whether there must be consideration or not for a transfer to be valid although transfer is also subject to provisions of the articles of association.

    1. 1. all the shares in the company are prepaid hence it precludes the need for call.
      2. Registrar company’s n parties concerned have been served Notices n the matter is subjudiced. No injunction ordered.
      3. What if the shares were transferred verbally and no transfer deeds made nor transfer entered in register of shareholders neither scrips issued?? What if shares were not with the transferor or transferee but with a third party, privately kind of equitably mortgaged? This may constitute violation of Company law n Articles. If do what are the remedies available ? Sometimes such cases do happen in family companies where a father due to certain contingencies keeps or trusts his shares to his nominee children. This in Pakistan is covered by Benami Law

  3. Hi, how do you value intellectual property as equity in a company? In other words if I have done something for a company can I be paid with some shares and if yes does the company have the right to later call for payment of that same amount of shares in future?

    1. Hello Raphael. Thanks for reading and asking. I do not know how intellectual property is valued but there should be valuation experts who can do that. You can pay for your company shares in consideration other than cash but there will need to be a valuation so the shares given match the value you added. If that is done, then you have paid for the shares and should not be asked to pay any more money in future for the same shares by way of a call on shares. Hope this is helpful.

    2. Yes…you can acquire shares by doing any service or contribution apart from cash to the company.
      There is no need for Evaluation of intellectual property if it is an Invention. Inventions are priceless ..
      You only ought to get a Patent for it and by sibmitting it to a company you can acquire its shares of equivalent value. But the value ought to be fair .

    1. Statutory or judicial? I do not have any other statutory authority on the point. There may be judicial authorities that address the issue of forefeiture. I will provide any I find. Thanks for your comment and apologies for delayed response.

  4. Sir,
    You stated and I quote “The Nigerian Companies and Allied Matters Act, 2004 prohibits issuance of shares with no right to vote or a right to more than one vote…”

    I find this confusing being that you further down your article, talked about having Founders shares which gives more voting control. And you also mentioned Preferred shares with No voting rights. I quote “Preference shares could be stated as non-voting (holders would not be entitled to attend meetings or vote) …”

    My dilemma is, I and my co founder have a company I want to invite investors but need to retain voting control (just like in Facebook). So we want to create two classes in the Articles of Association, giving the cash investors sizeable shares to match their cash investment and yet the founders need to retain voting control in order to be able to keep growing the business.

    So we are giving them Class A shares with 1 voting right each and Class B (or Founders shares) for the founders which have 5 voting rights per share.

    Is this permissible in Nigeria jurisdiction?

    1. Hello Mr. K. Thank you for your comment. Founder’s shares are different from preference shares. Generally, under Nigerian Corporate law each share has one vote. However, there are exceptions for preference shares based on sections 116 and 143 of CAMA. There are practices in other jurisdictions such as the U.S that are not applicable in Nigeria. I suggest you contact a corporate lawyer for proper guidance. This blog is not intended to serve as a legal advisory tool but useful for information purposes. There are a number of factors that need to be considered in giving legal advise and so each case needs to be taken on its merit. Kindly note that I am female. Thank you.

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