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  • Writer's pictureTroy Schoenfisch

Essential things to know BEFORE giving someone else shares in your company

A common question I get asked as an accountant, adviser & ASIC Registered Agent is, "how do I issue shares to new investors".

It is also quite common that the value and number of shares issued in a company are NOT accurately reflected on the financial reports, so I thought I would share with you a few of the fundamentals that business owners commonly are unaware of.

Most people are aware of the fundamental ways to access investment into a company:

  • Straight out issuance of shares

  • Loans from connected or 'associated individuatls' (usually directors & their family) that may be transferred to shares

  • Convertible Notes

  • SAFE Notes

Potential investors could have certain expectations, depending on the way that the funds are provided to the company & when the shares are actually issued. For instance, will the investor expect to be a director as well?

It is certainly advisable to have a Shareholder's Agreement in place that clearly sets out the expectations and obligations of all parties involved so that there is a 'reference point' for who makes what decisions & has what sort of influence in the company. The Corporations Act outlines certain requirements, but a company would certainly benefit from having specific agreements in place for it's own investors.

As shares are assets in their own right, whether in private entities or Public Companies, there are a number of Capital Gains Tax (CGT) implications whenever shares are issued or sold, so a company needs to value the business, and it's assets, at a particular point in time for each share issue. This can be undertaken by an accountant or a specialist valuation expert and can be an involved and expensive exercise, but if you are expecting a significant sum, then a valuation may assist to confirm the value of the business to use in negotiations around what percentage of the company will be issued for the value of the investment.

For the original directors to maintain 'majority investment', they need to hold a majority of the Ordinary Shares. There is a risk in just 'issuing' additional shares to existing directors when new investment is received, as the 'unpaid portion' of the shares could be claimable from the shareholders personal assets if there are any issues with financial claims against the company or if the company goes into liquidation. As such, it is best to ensure that all work undertaken on the development of assets & the growth of the business by the current shareholders or directors of the company that ISN'T actually paid for still be recognised on the financial statements. This way, that 'unpaid' work can potentially be classified as a loan to the company by the individual and a portion of this could then possibly be 'converted' to equity in lieu of payment. This is something that is quite commonly overlooked by company owners and accountants, but definitely worth discussing if you are looking at getting investment so that you maintain your controlling interest in your business.

When you decide to issue shares to other investors, it is important to remember that there are multiple types of shares, other than Ordinary Shares, and it is almost always best to issue new shares as different 'Classes', with different rules and rights assigned to them about:

  • Return on Capital

  • Dividends payable

  • How long to hold shares before being sold

  • Ability to sell shares to "open market" or if Constitution requires shares to be sold back to company or existing shareholders in first instance.

It is quite difficult to 'compel' a shareholder to change the type of shares that they hold once they are issued or to 'relinquish' their shares, but it is possilble in some situations.

There are some instances where special CGT exemptions apply for the issuance or 'roll over' of shares;

  • You may need to restructure your business from one entity to another & access small business rollover concessions

  • You may be eligible to qualify as an Early Stage Innovation Company, but if you do, then there are VERY specific timeframes on when you can issue shares & what investors are able to claim the Tax Rebate & CGT benefits

The very WORST thing that business owners will do (usually StartUps that are 'bootstrapping'), is that they will engage a marketing agency or an app / fullstack tech developer who will 'offer' to take equity in the company because there isn't enough cashflow or access to other funding to pay their costs. This is VERY problematic & should ONLY be considered in very specific circumstances. Also, it is imperative that the investment 'crystalise' or be issued ONLY once the service has been completed & a valuation is undertaken & the product or service is released into the market - otherwise, you could find yourself in a situation, as many other businesses have, that the provider doesn't complete the job & you have to engage someone else but they STILL own the shares in your company!!! It is possible to undertake a 'mandatory share buy back' in this instance, but it is a messy and complicated and potentially expensive process, which may involve lawyers & would still, usually, still involve paying them out for the value of their shares.

All of these things are absolutely imperative if you are looking for potential investment into your business. Once you exhaust the 'Friends, Family & Fools', or "Seed" round, you will find that potential investors that are not connected are quite discerning and will generally know how to read financial statements & identify potential 'risks'. If they see a high number of very small value investors, it could 'read' as though nobody has yet seen the true 'potential' of your business. These investors will usually be looking to provide $200k to $2M in funds, so they will generally have expectations that you will have to agree with, which is why Convertible Notes and SAFE Notes are becomming more popular as funding options.

As you can see, there are a LOT of things to consider. It can be difficult and expensive to 'unscramble the egg' if you don't get it right & you could either end up with severe tax implications or lose out on potential investment if the setup isn't correct.

To make sure that you have everything set up the right way BEFORE you access your next round of investment, or even to make sure that your current set up is correct, reach out and arrange a time to discuss what best suits your situation now and in the future -


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