Question:
Separately consider each capital transaction. Can Grand Ltd successfully undertake each transaction? Explain your answer with references to the relevant sections of the Corporations Act 2001 and relevant case law.
Grand Ltd’s current share capital consists of 25000 ordinary shares, which were issued at a price of $5 per share, and 5000 preference shares that were issued at a price of $2.
The rights of the preference shares have been decided by passing a special resolution by Grand Ltd just after its registration. The rights of the preference shareholders are as under:
The document governing the organization does contain provisions that shall be applicable on the further issue of preference shares. Neither does it provide for variation or cancellation of the rights of any share.
The shareholding of the ordinary shares of the company is as under:
At the time of issue of ordinary shares, each carried one voting right.
Now, the company is willing to increase its capital base by the issue of shares. It has two options
Grant Ltd prefers to raise funds from the issue of equity shares. This shall dilute the shareholding of Audax family. The Audax family does not want to invest funds in the company any further. However, it still wants to retain its shareholding of 60% in Grant Ltd. Therefore, the company is considering adopting the following strategy to raise additional funds:
The main issue mentioned in the above case study is that whether Grant Ltd can go ahead with the above mentioned issuance of preference and ordinary shares or not. Further, whether Audax family can be granted two votes when a poll is demanded is also an issue of the case study. In the paragraphs mentioned below the these issues shall be dealt with in the light of the provisions of Corporations Act 2001.
As per Section 9 of Corporation Act, 2001, a redeemable preference shares means shares that have preference over other class of shares in the payment of dividend of the company or in the distribution of the assets of the company at the time of winding up (icnl.org, 2017). These shares may or may not carry voting rights. However, preference shares that are issued by a listed company must carry voting rights relating to certain matters (Freckelton and Selby 2013).
Corporations Act, 2001 defines ordinary shares as shares that do not carry any preferential rights. Ordinary shares are entitled to vote and participate in the dividends or in the distribution of assets of the company (icnl.org, 2017).
The Corporation Act further provides that without prejudice to any special rights previously conferred on the holders of any existing shares or class of shares and subject to the provisions of this Act, the Listing Rules and the Constitution, the directors can, at any time issue such number of shares that they consider appropriate (Coffee Jr, Sale and Henderson 2015). Further, the shares that the directors plan to issue can belong to any class of shares (icnl.org, 2017). These shares can be ordinary shares, preferred shares, deferred shares or shares having other special rights and restrictions with regard to return on capital, dividend otherwise or otherwise as the directors determine on their discretion (icnl.org, 2017).
The Corporation Act further elaborates on the rights attached on any class of shares. As per the provisions of this Act, share capital of the company can be divided into different classes of shares subject to certain conditions (icnl.org, 2017). According to the relevant provisions of the Act, the rights of any class of shares can be varied if three quarters of the shareholders of that class of shares give their consent in writing or if it authorized by a special resolution passed in a separate meeting of the class of shareholders whose rights are being considered to be varied.
The provisions of Corporation Act, 2001 have been mentioned above. On applying the above mentioned provisions of Corporation Act 2001 in case of Grant Ltd the following inferences can be drawn:
Conclusion
It can be concluded from the above discussion that all companies are required to follow the provisions laid down in Corporation Act 2001 and the document governing the company. However, if there is a contradiction between the document governing the company and the Act, the Act shall prevail. Further, in case the document governing the organization is silent relating to any matter, the company shall follow the provisions of Corporation Act. Grant Ltd needs to follow the provisions mentioned in the Corporation Act for raising funds through the issue of additional preference shares or ordinary shares. Grant Ltd also needs to follow the provisions contained in the Act in order to grant additional voting rights to Audax family. The Act authorizes the directors of any company issue any class of shares at any time as the directors deem fit. Hence, the directors of Grant Ltd can issue the required number of preference and ordinary shares at any point of time, as they consider appropriate. The Act also provides that when the rights of any class of shares are varied, a meeting of that class of shares shall be held and the proposal relating to the variation of the rights of shares should be approved by three quarter of the shareholders. The Act also permits to grant more than vote to any class of ordinary shareholders when a poll is demanded. However, such voting rights can be granted only if the requisite number of shareholders as provided by the Act pass the proposal granting such rights. Therefore, Grant Ltd needs to hold a meeting of the ordinary shareholders before granting any additional voting rights to Audax family in order to seek approval from the ordinary shareholders. In case, the requisite number of shareholders does not approve the proposal in the meeting, then the proposal shall fail and Audax family shall not be granted any additional voting rights.
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