Issue of Preference shaars by a Pvt ltd start up co

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Prakash Joshi (Querist)
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01 June 2022 Can a newly set up small Pvt. co issue Preference shares convertible into equity shares at a later date to the Indian and (an overseas investor under FDI) willing to infuse funds. What is better option to issue Equity or preference shares or mix of both.

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PC Joshi

Asha Kanta Sharma

Asha Kanta Sharma

(Expert)
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09 July 2024 Yes, a newly set up private company can issue preference shares convertible into equity shares at a later date to both Indian and overseas investors under the Foreign Direct Investment (FDI) regulations, subject to compliance with applicable laws and regulations in India, including the Companies Act, 2013 and the Foreign Exchange Management Act (FEMA) guidelines.

### Understanding Preference Shares and Equity Shares:

1. **Preference Shares:**
- Preference shares are a type of equity security that gives holders certain rights over ordinary equity shareholders. These rights typically include preference in payment of dividends and in distribution of assets in case of liquidation.
- They can be structured to be convertible into equity shares after a specified period or upon certain events, such as achieving specific milestones or at the discretion of the shareholder.

2. **Equity Shares:**
- Equity shares represent ownership in the company and generally confer voting rights and a share in the company's profits through dividends.
- They do not have any preferential rights in terms of dividends or liquidation compared to preference shares.

### Factors to Consider for Issuing Preference Shares vs. Equity Shares:

**1. Investor Preferences:**
- **Preference Shares:** Investors looking for assured returns in terms of dividends and priority in repayment prefer preference shares.
- **Equity Shares:** Investors seeking higher returns through capital appreciation and profit-sharing prefer equity shares.

**2. Control and Voting Rights:**
- **Preference Shares:** Usually do not carry voting rights or have limited voting rights, which can be a consideration if founders wish to retain control.
- **Equity Shares:** Carry voting rights, which gives shareholders a say in the company's decisions.

**3. Flexibility and Conversion:**
- **Preference Shares Convertible to Equity:** Provide flexibility to attract investors looking for potential upside through equity ownership while initially providing preferential treatment.
- **Pure Equity Shares:** Offer straightforward ownership and profit-sharing rights without preferential treatment.

**4. Compliance and Regulations:**
- Ensure compliance with the Companies Act, 2013, and FEMA regulations for issuance of preference shares convertible into equity shares, especially when involving overseas investors.

**5. Mix of Both (Hybrid Approach):**
- Some companies opt for a mix of preference and equity shares to cater to different investor preferences and to balance risk and return expectations.
- This approach can be attractive if the company wants to accommodate diverse investor needs while maintaining flexibility in capital structure.

### Conclusion:

Choosing between preference shares, equity shares, or a combination depends on your company’s specific circumstances, investor preferences, and strategic goals. Preference shares convertible into equity shares can be a viable option to attract funds from both domestic and foreign investors, providing a balance between assured returns and potential capital appreciation. It’s advisable to consult with legal and financial advisors to structure the offering in compliance with regulatory requirements and to align with your company’s long-term financial strategy.