Preference share funding structures: An overview of the application of the relevant Companies Act and Income Tax Act provisions

The provisions of the Companies Act and Income Tax Act need to be considered in the context of the outcome which the company wishes to achieve before a company settles the terms of a preference share funding structure. What follows is a brief overview of, and practical guide to, the application of the Companies Act and Income Tax Act provisions relevant to preference share funding structures.

1. Share Capital

1.1  The existing share capital structure and memorandum of incorporation (MOI) of the company should be reviewed at the start of the preference share structuring process to determine whether it is necessary to increase the authorised share capital of the company in order to create the class of preference shares required for purposes of the funding venture and whether the MOI prescribes compliance with certain formalities prior to such increase being undertaken.

1.2  A share capital increase amounts to an amendment of the company’s MOI and needs to be authorised by the directors and shareholders of the company in accordance with s36(1)(d), read with s16(1)(c)(i), of the Companies Act. The amendment needs to be registered with the Companies and Intellectual Property Commission, which process can take between two to four weeks and in some instances, even longer.

1.3  It is recommended that this process be undertaken at the start of the structuring process to ensure that the shares are in existence by the time the preference share subscription agreement, preference share terms and related security documents have been negotiated and signed.

1.4  It is therefore best to create a class of unspecified shares, the preference, rights, limitations and other terms of which are to be specified by the board of directors, and approved by the shareholders if required by the company’s MOI, once the preference share terms have been agreed.

2. Type of Preference Shares

The types of preference shares available to companies wishing to establish a preference share funding structure can be categorised according to the different obligations, rights and entitlements attaching to them.
The nature of the obligations, rights and entitlements will depend on the type of funding structure that the company wishes to establish. Preference shares can therefore be categorised into the following main types:

2.1  Participating vs Non-Participating: participating preference shares entitle the holder thereof to the surplus assets and profits of the company once all shareholders have been paid their dues while non-participating preference shares do not.  

2.2  Cumulative vs Non-Cumulative: preference shares usually entitle the holder thereof to a preferential dividend payable on a specified dividend payment date. If the company does not declare a preferential dividend on the dividend payment date, a cumulative preference share will entitle the holder thereof to an accrued dividend which will be carried over to the next dividend payment date. The cumulative dividend must usually be settled before any further dividends, whether ordinary or preferential, are paid. The holder of a non-cumulative dividend will not be entitled to such an accrual and will lose the right to receive a dividend if the company does not declare a dividend on that dividend payment date.

2.3  Convertible vs Non-Convertible: convertible preference shares entitle the holder thereof to the right to convert the preference shares to ordinary shares in the share capital of the company on predetermined terms while non-convertible preference shares do not. Upon conversion, the preference shareholder will lose its preferential rights and will have the same rights as the holders of the class of shares into which the preference shares have been converted.

2.4  Redeemable vs Non-Redeemable: redeemable preference shares can be redeemed by the company either on a specified date or over a period of time. Upon redemption, the company will be required to pay all distributions which have accrued to the holder thereof and all other amounts owed to such holder. Such redemption will be undertaken in accordance with s46 of the Companies Act.

3. Purpose

3.1  Section 8E(2) of the Income Tax Act provides that dividends received in respect of a preference share will be deemed to be income in the hands of the recipient, ie the holder of the preference share, if the preference share constitutes a “hybrid equity instrument”.

3.2  Section 8E(1) defines a “hybrid equity instrument” as, among other things, a preference share which is secured by a financial instrument or is subject to a financial instrument which cannot be disposed of, unless the preference share was issued for a “qualifying purpose”. This means that the subscription proceeds which are received by or accrued to the issuer of the preference shares must be applied for one or more “qualifying purpose(s)”, as defined in s8EA of the Income Tax Act.

3.3  Section 8EA of the Income Tax Act provides that subscription proceeds received by or accrued to the issuer of the preference shares will be deemed to have been used for a “qualifying purpose” if it is used for:

3.3.1   the direct or indirect acquisition of an equity share in a company which is an “operating company” at the time of receipt or accrual of the dividend, provided that it cannot be used to acquire shares in an operating company which, immediately prior to such acquisition, formed part of the same group of companies as the person acquiring the equity shares;

3.3.2   the direct or indirect acquisition or redemption of other preference shares (Original Preference Shares) if:

3.3.2.1  the Original Preference Shares were originally issued for a “qualifying purpose”; and

3.3.2.2  the amount received by or accrued to the issuer does not exceed the amount which remains outstanding in respect of the Original Preference Shares;

3.3.3   the payment of dividends in respect of the Original Preference Shares; and

3.3.4   the partial or full settlement of debt incurred in respect of any one of the above.

3.4  An “operating company” is defined in s8EA of the Income Tax Act as:

3.4.1   a company that carries on business continuously and, in the course of operating such business, provides goods and/or services for consideration or carries on exploration of natural resources;

3.4.2   a company that is a controlling group company in relation to the aforementioned operating company; and

3.4.3   any company that is a listed company.

4. Redemption Profile

4.1  Section 8E(1) of the Income Tax Act also defines a “hybrid equity instrument” as, among other things, a preference share in respect of which:

4.1.1   the issuer thereof is obliged to redeem the preference share in whole or in part within a period of three years from the date of issue of that preference share;

4.1.2   the holder thereof has the option to redeem the preference share in whole or in part within a period of three years from the date of issue of that preference share; or

4.1.3   the existence of the company issuing such preference share will be, or is likely to be, terminated within a period of three years from the date of issue of that preference share.

4.2  It follows that the preference share terms should always set the scheduled redemption date for any preference share on a date which is at least three years and one day after the issue date of such preference share.

4.3  The preference share terms may however provide that the issuer has the right, at any time, to voluntarily redeem the preference shares before such date without the resultant adverse consequences of s8E.

5. Security

5.1  Since preference share funding amounts to an obligation on the issuer to pay certain amounts to the holder thereof at a future date(s), holders often require that the obligations of the issuer be secured.

5.2  This can be achieved through a number of security arrangements using the assets of the issuer. It can also be achieved by using the assets of a third party. However, s8EA(2) of the Income Tax Act provides that dividends received in respect of a preference share will be deemed to be income in the hands of the holder of the preference share if the preference share constitutes a “third-party backed share”.

5.3  Section 8EA of the Income Tax Act defines a “third-party backed share” as a preference share in respect of which an enforcement right is exercisable by the holder of that preference share or an enforcement obligation becomes enforceable as a result of any specified dividend or return of capital attributable to that share not being received by or accruing to the person entitled thereto.

5.4  Section 8EA(3) of the Income Tax Act does, however, provide that a preference share which is secured by the assets of a third party will not constitute a “third-party backed share” if the obligations of the issuer of that preference share is secured by one of the following persons:

5.4.1   the operating company in respect of which the preference share funds will be applied, provided the funds were applied for a qualifying purpose;

5.4.2   the issuer of the preference shares, provided it was issued for a qualifying purpose;

5.4.3   any person that directly or indirectly holds at least 20% of the equity shares in the relevant operating company or issuer;

5.4.4   any company that forms part of the same group of companies as the relevant operating company, issuer or 20% equity holder;

5.4.5   any natural person;

5.4.6   any non-profit company, trust or association of persons, provided that none of the activities of that organisation are directed at promoting the economic self-interest, other than the payment of reasonable remuneration, of any employee or fiduciary of that organisation; and

5.4.7   any person who holds equity shares in the issuer of the preference shares, provided that the enforcement right or obligation exercisable against that person is limited to any rights in and claims against that issuer that are held by that person.

Section 8E and 8EA of the Income Tax Act and the resultant tax consequence of the application of these provisions often requires a delicate interpretation on a case by case basis. It is therefore advisable to always obtain tax and structuring advice in respect of each preference share funding transaction which a company wishes to undertake, since each transaction will often have its own peculiarities.