• 发表时间:2019-01-15
  • 作者:公司合同律师
  • 来源:未知
  As a professional legal counsel for many small or medium sized companies,Nanjing Corporate Lawyer is engaged in providing best legal service to increase the added values of startups.I am pleased to see more and more startups now consider share distribution and employee incentive plan not only as tactical issues,but more as of strategic nature.I strongly suggest that partners shall be cautious while setting the shareholding structure of the company,because any changes made to such framework might require unanimous consent.In this process,partners should evaluate and balance short term gains and long term gains,finally reaching an prospective optimal solution involving game theory.For example,if a startup founder,would like to give up large proportion of shares in exchange of quick fund that he is in urgent need of,and thus it appears he saves a lot of money in a short term,will suffer from remorse caused by prospect loss in dividends and control over the company in a long run.
  Let me take a case we dealt with as an example.Zhang owned a house near the side of the street and it is very suitable to be a company's site for operation.Wang just graduated from a foreign medical school with a M.D degree and planned to set up a dentist clinic in China.Zhang wanted to lease the house at a market price and Wang wanted to rent a house for the prospective clinic.
  When they were introduced to each other,they talked about the medical start-up and then Zhang got very interested and also wanted to invest in Wang's company.In lack of money,and after cautious considerations,Wang decided to accept that offer.Zhang also did not have much cash on hand or much deposit in the bank account,the only investment that he could offer was that he would allow the company to freely use the house as a clinic.
  In normal situations,if you provide a long term house lease as a contribution to a company,you should use a reasonable way to assess the market value of such house lease,and then convert such value into cash value as recorded contribution.Zhang wanted to contribute five years house lease to the company.That means he would allow the company to freely use this house for five years without charging any rent,and from the 6th year,the rent will be charged based on market value at that time.
  Nanjing corporate lawyer told Wang that,in short term you and company will save a large amount of money,if you accept Wang's condition,but in the long run,five years free lease will cost you a much higher proportion of share and will make you lose control over the company.You should make a basic analysis on from which time the company will get enough funds or benefits to fully pay the marketable house lease.For example,if you suppose from the fourth year,the company has enough funds to pay the market level house lease,then you should only allow him to make a contribution worth three years house lease,that will significantly reduce his perspective proportion of share and company and you control of the company and other benefits will be guaranteed.
  In response to Zhang's concern about whether his investment will finally result in adequate dividends,after discussion with Wang,our legal team designed a special scheme to balance both parties interests.At first,we have stipulated in the shareholders agreement,that Zhang only offers the house lease as contribution to the company,he himself was not involved in the daily operations and decision making process of the company.
  He also authorizes Wang to exercise his shareholder's voting right.Fully authorized as CEO responsible for making strategic decisions and carrying out daily operations,Wang should be held accountable for the financial performance of the company.
  We set a minimum performance level,which is mainly based upon the dividends distributable created each year.As a startup,for the first two years,deficits are tolerated,but from the 3rd year,the company is required to make dividends.There are three performance levels,the minimum performance level,the excellent performance level,and the outstanding performance level.
  Once the chief executive officer reaches a high level,he will be distributed higher proportion of dividends,and the dividends distributed to Zhang will be accordingly reduced.Furthermore,if the CEO cannot reach the minimum performance level,his personal bonuses will be cancelled,and if there are any dividends created,Zhang is entitled to be distributed the dividends prior to wang,until his perspective benefit he would have gained if the company performance had reached the minimum performance level is fully satisfied.
  Nanjing corporate lawyer suggest that founding partners should make a balance in distributing the shares,as they will play different roles in the company and provide different forms of assets as contributions.Sometimes,the performance assessment criteria should be introduced as a method to decide the proportion of dividends to be distributed respectively.