An important characteristic of a company is that its shares are transferable. Shares or debentures are movable property. They are transferable in the manner provided by the articles of the company, especially, the shares of any member of a public company. A private company is required to restrict the right to transfer of its shares in ts articles.
Transfer of shares means the voluntary handing over of the rights and possibly, the duties of a member (as represented in a share of the company) from a shareholder who wishes to not be a member in the company any more to a person who wishes of becoming a member. Thus, shares in a company are transferable like any other movable property in the absence of any expressed restrictions under the articles of the company.
1. Subscribers to the memorandum.
2. Legal Representative, in case of a deceased.
3. Transferor.
4. Transferee.
5. Company (whether listed/ unlisted).
A private limited company is considered to be a “closed corporation” of members, similar to a Partnership Firm. Therefore, the share transfer in a Private Limited Company can be restricted by the Articles of Association (AOA). Hence, the Articles of Association of the Company must be reviewed prior to beginning the share transfer procedure.
Restrictions on right of the shareholders to transfer shares are usually in two forms:
1. Rights of pre-emption: If a shareholder wishes to sell some or all of his shares, such shares must first be offered to other existing members of the private limited company at a price determined by the Directors or the Auditor of the Company. The value of the shares can be determined based on the formula / method prescribed in the Articles of Association. In no existing shareholder is interested, then shares of the Company can be freely transferred to an outsider.
2. Powers of Directors to refuse: The Director may have the powers to refuse registration of transfer of shares under certain circumstances – prescribed in the Articles of Association.
Only restriction contained the Articles of Association are considered legally binding. Any private agreement between the shareholders are not binding either on the company or on the shareholders. Further, share transfer can only be restricted by the Articles of Association. The right to transfer shares of a private limited company cannot be an total prohibition or ban on share transferability.
To affect the share transfer, the following steps must be followed:
Step 1: Obtain share transfer deed in the prescribed format.
Step 2: Execute the share transfer deed duly signed by the Transferor and Transferee.
Step 3: Stamp the share transfer deed as per the Indian Stamp Act and Stamp Duty Notification in force in the State.
Step 4:Have a witness sign the share transfer deed with his/her signature, name and address.
Step 5: Attach the share certificate or allotment letter with the transfer deed and deliver the same to the Company.
Step 6: The company must process the documents and if approved, issue new share certificate in the name of the transferee.
Transfer becomes effective only on registration of such shares by the company. The company shall deliver the share certificate within 1 month from the receipt by the company’s instrument related to transfer. The instrument of transfer must be endorsed with the respective name of the transferee.