Some people say that controlling the proportion of equity can grasp the control of the company, some people say that they can control the company through the license of the controlling company, and some people say that they can control the company by controlling the company's customer resources, sales channels, and finances. How to grasp the control of the company and no longer make a wedding dress for others? Today, the lawyer makes some comments and analyses on the control of the company in terms of equity and management rights.
Keywords: equity, management rights, shareholder rights
1. Equity in the control of the company
1. Equity shareholding ratio
According to Article 43, Paragraph 2 of the Company Law, resolutions of the shareholders' meeting to amend the articles of association, increase or decrease the registered capital, as well as resolutions on the merger, division, dissolution or change of the form of the company must be passed by the shareholders representing more than two-thirds of the voting rights. In addition to the above-mentioned matters, the consent of more than one-half of the shareholders is required for other matters, unless otherwise agreed in the articles of association.
Combined with the provisions of the Company Law on the resolutions, voting rights and voting ratio of the shareholders' meeting, according to the shareholding ratio, the absolute shareholding should reach more than two-thirds, that is, 67%, and the relative holding ratio should be at least 51%, and when some of the relative shareholding ratio is less than 51% but still has a comparative advantage compared with other shareholders, its influence on the resolutions of the company's shareholders' meeting is very limited. Failure to comply with the above shareholding ratios can lead to a deadlock among the company's shareholders in some extreme cases, such typical shareholding ratios generally include the following: 50:50, 65:35, 40:40:20 or even 50:40:10.
If the shareholding ratio of the shareholder reaches the status of the controlling shareholder, it has influence when the shareholders' meeting makes resolutions on relevant matters, so that the purpose of controlling the company can be achieved by influencing the voting matters of the shareholders' meeting.
2. Special shareholding ratio
According to Articles 39 and 40 of the Company Law, shareholders representing more than one-tenth of the voting rights of the company have the right to propose the convening of an extraordinary meeting, and have the right to convene or preside over the shareholders' meeting on their own if the executive directors, the board of directors or the supervisors (meeting) fail to convene and preside over the shareholders' meeting.
From the perspective of control at the equity level, holding 10% of the shares is the minimum proportion that shareholders can convene a shareholders' meeting under certain conditions. Shareholders can convene and preside over shareholders' meetings and ask other shareholders to vote on specific matters, with a view to achieving their own purpose of controlling the company by forming resolutions of shareholders' meetings.
3. Lawyer's opinion
At present, shareholders can expand their control over the resolutions of the shareholders' meeting through voting rights entrustment or through the signing of a "concerted actor agreement".
(1) Entrustment of voting rights
Voting rights are the right of shareholders to vote on the proposals of the shareholders' meeting, and shareholders have the right to attend the shareholders' meeting in person or by proxy to attend the shareholders' meeting and vote on the relevant issues, and express their opinions in favor, abstention and opposition on the topics of the meeting. Voting rights belong to the common benefit rights of shareholders to realize the common interests of the company and organization, and are the core rights of shareholders to participate in operation and management. Voting rights entrustment means that some shareholders of the company entrust their voting rights to other specific shareholders through an agreement. Through the entrustment of voting rights, the restriction on the proportion of voting rights can be broken within the scope of the voting rights enjoyed by the subscription ratio.
(2) Concerted Action Agreement
According to Article 83 of the Administrative Measures for the Acquisition of Listed Companies, the term "concerted action" refers to the act or fact that an investor expands the number of voting rights of the shares of a listed company that it can control with other investors through agreements or other arrangements. A "concerted action agreement" means that shareholders agree to take concerted action on specific matters, and when there is a disagreement within the shareholders' meeting, certain shareholders follow the concerted action to vote. Shareholders who sign the "Concert Agreement" will make the same expression of intent when exercising their shareholder rights such as the right to propose and vote, so as to consolidate the controlling address of the shareholder who acted in the company.
2. The right to operate and manage the control of the company
In modern companies, the separation of equity and management rights has become the norm, and not all shareholders are directly involved in the daily operation and management of the company. Under normal circumstances, the shareholders' meeting, as the highest authority of the company, directly participates in the operation and management of the company only by convening a shareholders' meeting when it involves major matters such as amending the articles of association, making foreign investments, and guaranteeing shareholders or actual controllers. The Board of Directors and senior management are responsible for the day-to-day business activities.
The board of directors is the decision-making body of the company that is in charge of the company's affairs internally and represents the company's production and operation externally in accordance with the provisions of the law, the articles of association or the resolution of the shareholders' meeting. If shareholders can influence the resolutions of the board of directors through the directors nominated by them, they can effectively control and participate in the operation and management of the company.
1. The right to nominate directors
In companies with a board of directors, the struggle for control of the company is also reflected in the nomination and removal of directors. The board of directors has the right to convene shareholders' meetings, decide on the company's business plan and investment plan, appoint and dismiss managers, deputy managers and financial leaders, formulate the company's basic management system, and other functions and powers stipulated in the company's articles of association. By controlling the nomination of directors, shareholders can transform their own intentions into influence for shareholders to participate in the company's operation and management and implement relevant decisions through the directors nominated by them.
2. The selection of the legal representative and the custody of the official seal
According to Article 13 of the Company Law, the legal representative of a company shall be the chairman, executive director or manager in accordance with the provisions of the articles of association of the company, and shall be registered in accordance with the law. The legal representative is the executive organ responsible for the daily operation and management of the company, and has the right to engage in civil exchanges on behalf of the company. In the absence of clear provisions in the articles of association, the resolution of the shareholders' meeting and the management system of the company's certificates and licenses, it may be presumed that the legal representative has the right to keep the company's certificates and licenses.
3. Lawyer's opinion
The number of directors who have the right to nominate directors can be determined through the articles of association, the persons who serve as the legal representative may be specified, and the management system for important assets such as company certificates and licenses may be formulated, and the authority to keep relevant certificates and licenses or other important assets of the company may be confirmed.