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.
大部分股东认为,一家公司的控股股东必须是享有公司大部分股权的人,而仅仅拥有少于10%股权的股东一般来说对于公司事务不可能存在很重要的影响力。虽然如此,南京公司律师许光律师(电话微信同号17712855901)却认为,一位拥有少于通常认为的控股股东的股权的股东也有可能对于公司事务发挥重要的影响,且在特殊情景下,他们甚至有可能对于公司未来的发展具有重大影响。
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.
这种情况出现的原因是,公司的股权结构失去了平衡。公司可能存在两位或者多位大股东,每人手中的股权都很有分量,但都难以单独通过最终决定。在此种情形之下,作为“关键少数”的小股东可以扮演非常关键的作用。如果其决定支持或者反对一位大股东,则有可能使该大股东提出的议案得以通过或者否决。
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.
虽然这种股权结构可能为公司带来重大风险,但倒是在这间公司也一直运行得还不错。在两年的运行和营销之后,三个创始人发现公司来到了一个发展的拐点:公司是否应当从技术导向型公司向市场导向型公司转型?作为营销总监,托尼强烈建议公司应当采用有效的商业模式,应当将资源从技术发展转变到开拓新市场和新客户。托尼认为,他们所掌握的技术已经足够,现在的问题是将技术转化为受欢迎的应用。塞姆则认为,公司应当集中精力进行技术开发,而不是把市场放在首位。他们都向露西求援,而令他们感到惊讶的是,露西要求他们将自己20%的股权转让给自己,就可以得到自己的支持,从而做出最终决议。
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.
塞姆和托尼不想将他们的股权让给露西。在律师的陪同下,他们两人举行了一个会议,协商了相关事项。两人达成了妥协,塞姆部分放弃了将公司完全转变为市场导向的动议,而汤姆则同意增加市场费用,并个人出资借贷给公司以作为市场营销费用。露西没能得到增加的20%股权,而塞姆和托尼则成功狙击了她想要增加影响力的野心。不过,他们还是同意向露西提供了股权期权,允许她在公司资产或者收入达到一定水平的时候可以较低价格购买股权。
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.
南京公司律师认为,公司股权结构是非常重要的。有可能经过几轮的投资和融资,甚至是上市交易之后,公司股权结构变得越来越复杂。然而,在初创公司的起始数年,保持决策程序的高效和透明是非常有利的。在公司之中,最好有一个控股股东可以以自身的单独行动决定公司的重要事项。对于主要股东股权数额过度接近,从而使得小股东能够在特殊情况下发挥难以预估的影响这一情况,公司创始人们应当加以避免。
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