We have a company with 3 shareholders (1/3 of shares each).

We are now restructuring and the distribution will be 45%, 45%, 10%.

I and the investor will go from 33.3% to 45% while the third shareholder will go from 33.3% to 10%.

But, during that time, the investor is also requiring some changes:

  • XXX Ltd will continue to fund the company thanks to the shareholder loan provided by XXX Ltd which can be converted any time in shares of [the company] based on a valuation of €YY (enterprise value)
  • Amendment of the Article of Association (3)(b) in order to reduce the threshold for extraordinary resolutions from 90% in nominal value of the total shares to 64%

Which makes me think of two issues:

  • It looks that: if at any time the investor can convert the shareholder loan into shares, he would have the ability to dilute both me and the 10% shareholder below 64% and take total control.
  • Also, the investor's contribution is capital, while ours is unpaid time. So if he has a mechanism to convert his investment while ours is simply sunk in the company, it seems like there is a strong imbalance.

Am I interpreting this correctly?

  • Does the math work out where immediate conversion of the loan would give them 64% or more? Typically special resolutions require a 2/3 or 3/4 vote rather than simple majority, so 64% feels like an odd number to choose given the new structure. While intriguing, this question is off-topic on this site. This is something your attorney should review. – Hart CO Mar 26 '19 at 14:09
  • it's exactly the 64% that got me thinking; it looked like it was a calculated number and therefore, there had to be an explanation. And, yes the conversion of the loan would give a bit more than 64%. If this is not the right site, what would be more appropriate? I see questions about directors, shares, etc on this site and it doesn't look like SE has any other sites that would match? – Thomas Mar 26 '19 at 14:51
  • 2
    There used to be a startup SE but it failed to thrive. law.stackexchange.com might be more appropriate but not sure it has a home on stackexchange. You can find a data-dump of the failed startup SE's in Area 51. If the math works, then it seems pretty clearly like a move to ensure they can take control if they so choose. I think you are interpreting it correctly, but if it were me I'd pay a legal professional to review. – Hart CO Mar 26 '19 at 15:31

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