What's the Worst That Can Happen With a Disgruntled Silent Shareholder? Whether a shareholder brings capital to the business, experience or connections, you need to ensure everyone has the same vision and values.

While we often hear that it can be bad to have a silent shareholder that does not want to play ball, it is not often that we make enquiries about how the governance of a company can be hindered by a disgruntled shareholder. Most of us assume that as long as they own more than 50% of their own company, they are entirely in control of all aspects of the company and how it is governed.

This is not true: Even if you are a majority shareholder, holding less than 75% of all the shares in your company can still result in headaches if a minority shareholder, holding at least 25% of the company, becomes disgruntled and neither participates in the decisions of the company, nor consents to the decisions being made.

What is set out below highlights, among others, why it is so important to give shares in a company to prospective shareholders over a period of time, rather than from the outset. This allows for shareholders to prove their worth without you potentially placing your company in a position where it could be held at ransom for many years.

The illusion of holding more than 50% of the shareholding in a company

• Many people assume that by holding more than 50% of the shares in a company they are free to do with the business as they please. This generally only holds true for basic decisions of the shareholders, such as the removal and appointment of directors. The most important decisions of a company are based on special resolutions. A special resolution requires that shareholders, either individually or collectively, holding at least 75% of all the shares in a company, vote in favour of a specific decision.
• Examples of decisions that require a special resolution include:
  • Amending a company's Memorandum of Incorporation
  • Approving the issuing of shares or granting of other similar rights
  • Authorising the basis for determining directors' salaries
  • Disposing of company assets
  • Mergers and acquisitions.

So, what does this mean for you and your company?

• If you are a start-up looking to raise funds, apart from some exceptions, you will not be able to issue further shares to new shareholders or anyone other than existing shareholders if there is a shareholder that is effectively dead weight.
• Should you manage to vote a new director to the board, you will not be able to determine the basis on which they are compensated (their salary) without a special resolution.
• If you intend to merge with another company, you will not be able to pursue this without a special resolution.
• If you plan to raise money by disposing of or selling most of the assets of your company you will, once again, be prevented from doing so.

Accordingly, it is always best when starting a venture to vest your shares over a period of time. This means that, for example, shareholders are only entitled to have their shares allocated to them after a certain period of time to avoid a situation where you have a dead-weight equity shareholder hindering the governing of your company, and requiring possible litigation to remove them.