初创公司应限制小股东的作用/A Start-up Should Limit the Roles of Small Shareholders
  • 发表时间:2019-01-17
  • 作者:公司法律师许光
  • 来源:南京公司律师
Most of the shareholders may believe that the controlling shareholder must be the shareholder who directly or indirectly controls the majority proportion of total shares of a company, and a shareholder only possessing shares of less than 10% of shares will not probably have a very significant impact upon the affairs of the company. However, as far as Nanjing Corporate Lawyer knows, a shareholder holding much less shares than a normally expected controlling shareholder also might probably have very significant impact over the corporate affairs, and in some specific scenarios, they might even determine the future development of the company.
The basic reason for this scenario to come about is that the corporate structure is not well-balanced; as there might be two or several major shareholders that each holds significant proportion of shares and none of them can play the decisive role to make the ultimate resolution for the company. In such a situation, a “key minority”, who holds only a small sum of shares but his/her attitude could appear to be pretty critical. If he or she decides to support or oppose one major shareholder, then the major shareholder may have his/her proposal passed or rejected. Let’s take a look at an example.
Sam, Tony and Lucy found a company. Due to their own accountable responsibility expected for the company and the funds they provided for the company as capital contributions, they have negotiated about the equity proportion each one shall take and the relevant responsibility to be assigned to each one as co-founders. Sam would be responsible for the development of technological research and development, and recruitment of technical engineers; Tony would be responsible for the operations of the company, as well as marketing of products; Lucy would be responsible for the financial management and control. Sam would be granted 49% of total shares; Tony would be granted 45% of total shares and Lucy would be granted 6% of total shares.
塞姆、托尼和露西共同成立了一家公司。根据他们对于公司所负担的不同责任,以及他们向公司提供的作为出资的运营资金,他们进行了商谈以决定他们每人所拥有的股权份额和作为共同创始人的职责。塞姆将会负责技术研究、开发以及招聘技术工程人员;托尼将会负责公司的运营和产品的营销;露西将会负责财务的管理和控制。塞姆将会拥有49%的股份;托尼将会拥有45%的股份;露西将会拥有6% 的股份。
Though this shareholding structure might bring some risks for the company in some specific situations, it had been running pretty well in their company until an incident occurred. After two years’ operation and marketing, the co-founders found that the company had been placed at a very critical point: whether it should continue its supposed role as a technology-oriented company, or should it be transformed into a market-oriented company? As the marketing director, Tony strongly suggests that he has found out a very effective commercial model for the company, and the company should switch from focusing the resources on the technological development to the exploitation of new markets and new customers. Tony suggests that the technology they have mastered is enough and the question is how to transfer such technology into popular applications. Sam then opposes his opinion and claims that the company should continue focusing on technological development rather than only concentrating on marketing issues. Both of them resort to the help of Lucy, and to their surprise, Lucy claims that either one offers to transfer his own 20% shares to her will gain her support in making the ultimate resolution.
Sam and Tony both don’t want to assign their shares to Lucy. Accompanied by lawyers, two of them had a private meeting and negotiated about the relevant issues. Finally, they came into a compromise that Sam partially abandoned his request to completely turn the company into a market-oriented one; and Tony agreed to increase the marketing budgets as well as personally making personal loans to the company as marketing funds. Lucy did not get her 20% share increase and Sam and Tony blocked her ambition to improve her influence in the company. However, they agreed to offer an option plan for her which would allow her to purchase their shares at a low price when the company assets or revenue have reached a certain level in the future.
Nanjing Corporate Lawyer suggests that the shareholding structure of a company is very important. It might be that after several rounds of financing and investment, or even being listed in a stock exchange, the shareholding structure will be more and more complicated. However, at the beginning years of the start-up, it would be an advantage to make the decision-making process efficient and transparent. There should be a controlling shareholder that he can solely behave to decide very important issues with respect to the company. Founders of a company shall avoid that  shares held by major shareholders too close in proportions might create space  for minority holders to exert unexpected influence in some specific occasions.