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This article was first published on the WeChat public account: EasyGlobe. The content of the article belongs to the author's personal opinion and does not represent the position of Hexun.com. Investors should act accordingly, at their own risk.
Recently, the speculation of the founder of ofo, Dai Wei, has attracted attention from all walks of life, and the speculation on the equity structure of theo is also diverse. According to "Lei Feng Wang" report, in the ofo shareholding structure, Dai Wei's share ratio is 36.02%, and Didi's share ratio is 25.32%, while Jingwei China, Jinshajiang, Wang Gang, etc. are actually investors of Didi. They can be classified as Drips, and their shareholdings add up or will far exceed Daiwei.
What is the difference between ownership of 67%, 51%, 34%, and 30%? It is better to take a look at this dry goods together.
Nine lines of equity life! ! !
1. Absolute control is 67%, equivalent to 100% of power, amending the company's articles of association / separation, merger, change of main projects, major decisions
2, relative control of 51%, control line, absolute control company
3. Safety control rights 34%, one vote veto
4, 30% listed company tender offer line
5, 20% major horizontal competition warning line
6. 10% of the temporary meeting rights, can ask questions / investigation / prosecution / liquidation / dissolution of the company
7. 5% major equity change warning line
8, 3% of the temporary proposal, open a small meeting in advance
9. 1% of subrogation litigation rights, also known as decentralized litigation rights, can be indirectly investigated and prosecuted (investigated by the board of supervisors or the board of directors)
In the 2016 commercial war, the Baowan dispute related to Wang Shi and the acquisition incident related to Dong Mingzhu were once vigorously fired. The dispute between the management and shareholders was heatedly discussed. At the end of the year, the beauty after the 90s, Yu Xiaodan, the founder and CEO of Kongkong Fox, also “accused†investor Zhou Yahui’s “kick out†during his illness, setting off a wave of investment and entrepreneurial circles...
The relationship between shareholders and managers is a long-term proposition. This article only briefly discusses how management maintains its control over the company. In the future, we will also share topics such as how to protect shareholders' interests.
1The management of listed companies and their control
Method 1
The expansion of shares means that the company raises shares, issues stocks, invests in new shareholders, or increases the investment of the original shareholders to expand the equity, which can increase the capital of the company, and the management has the opportunity to expand the shareholding ratio. There are a number of specific ways to expand shares, including:
Increase shareholding in the secondary market;
Expansion by private placement;
A share transfer agreement was reached with other shareholders to transfer equity to other shareholders.
As far as private placement is concerned, according to the provisions of the Securities Law: when a listed company makes a non-public offering of shares to a small number of eligible investors, it is required to issue no more than 10 persons, and the issue price shall not be lower than the market price of 20 trading days before the announcement. 90% of the average price, within 12 months of issuance of shares (within 36 months after becoming a controlling shareholder or having actual control rights after subscription), it is not transferable.
For management, they most often take control of the company through the MBO process.
Management Buy-Outs ("Management Buyout") refers to the management of the target company using the borrowings to finance the equity or equity transactions to acquire the company, thereby causing changes in the company's ownership, control, etc., to change the ownership structure of the company. Kind of behavior. Through management buyouts, the business operator becomes the owner of the business. There is no final conclusion as to whether this change in ownership can contribute to the development of enterprises. In practice, we found that sometimes management as a shareholder, personal interests and corporate interests converge, can help reduce costs and accelerate the company's development; but there are also lack of external supervision and control, management as a shareholder is not conducive to The company's progress.
Method 2 Consensus Action Agreement
A concerted action person agreement often means that when the company does not have a controlling shareholder or actual controller, a number of investors or shareholders jointly sign a concerted action agreement, thereby expanding the number of common voting rights and forming certain control.
We usually use the term “coherent action person†in the process of investment and financing projects and equity transfer projects. The purpose is also to protect the founder’s control over the company. In the case of listed companies, this method also Be applicable. For example, Shaanxi Baoguang Group Co., Ltd., the largest shareholder of Shaanxi Baoguang Vacuum Electric Co., Ltd., and Shaanxi Province Technology Progress Investment Co., Ltd. signed the “Coherent Action People Agreement†on November 17, 2016. Shaanxi Baoguang Group Co., Ltd. and the concerted parties held a total of 532.214 million shares, accounting for 22.56% of the company's total share capital. The scope of concerted action by both parties mainly includes the concerted action of the proposal and the concerted action of the vote, and the parties rely on their other rights (including but not limited to stock disposition rights, dividend rights, and enquiry rights) as shareholders of Baoguang 600379. Etc.) is not affected.
It is not difficult to find that the concerted action agreement is equivalent to establishing a contractual “small shareholder meeting†outside the company’s shareholder meeting. However, such a highly responsive approach relies almost entirely on “between small partnersâ€. Trust and loyalty, once small groups fall apart, the control of the company will cease to exist.
Method 3 Asset Restructuring
Asset reorganization refers to the rational division and structural adjustment of the assets and liabilities of the original enterprise when the enterprise is reorganized into a listed company. After mergers and divisions, the assets and organizations of the enterprise are recombined and set up.
Strengthening control over the company through asset restructuring is more like a “curve to save the country†road. For example, when the management has a low stake in Company A, it can reorganize assets with another B company that controls itself – issuing shares to Company B, and Company B holding shares of Company A, due to management The layer itself holds a certain share of company A, and is also the actual controller of company B, then the management has enhanced control over company A.
Method 4 Super Voting Rights - A/B Double Equity Structure
This method is mainly applicable to some overseas markets that allow “the same shares have different rightsâ€. Enterprises can issue two types of stocks with different levels of voting rights, one for one share and one for one, and one for multiple rights, whereby the founder and management can obtain more voting rights than the “share with the same share†structure. Therefore, it makes it harder for other institutions to invest and investors to take charge of the company's decision-making power.
When Google went public, it adopted the AB stock model. The founders and senior executives of Peggy, Brin, Schmidt and other companies held Class B stocks. The voting right per share was equal to the voting rights of 10 shares of Class A stocks. In 2012, Google added a non-voting C-share to issue new shares. In this way, even if the total share capital continues to expand and the founders reduce their stocks, they will not lose control of the company. By 2015, Peggy, Brin, and Schmidt hold Google's stock below 20% of the total share capital, but still have nearly 60% of voting rights.
At present, it seems that most of the dual-equity structure is Internet companies, technology companies, and media companies, which are more or less related to such enterprises. Among the Chinese stocks, Baidu and Vipshop have adopted this shareholding structure to prevent foreign capital control.
Method 5 Revise the Articles of Association
We found such a case: In 2014, Shanghai Xinmei Company took measures to amend the company's articles of association in response to the continued increase in the holding of Lanzhou Hongxiang Building Decoration Materials Company. We present the main changes as follows:
1 Goal 1: Limit the voting rights and voting rights of new shareholders
Before the revision: Shareholders holding more than 3% of the company's shares individually or in aggregate; use the cumulative voting system to conduct elections for directors and supervisors.
After the amendment: the new condition "12 consecutive months" to hold the shares; the restriction is "there must be a continuous shareholding of more than 12 months, the shareholders who have the right to propose the proposal in writing, after the board of directors deliberation and implementation."
2 Objective 2: Increase the time and difficulty of taking over the board of Shanghai Xinmei Board of Directors
Significantly reduce the proportion of directors in the election of the board of directors: When the board of directors is reelected, the replacement directors shall not exceed one-third of all directors; the candidates for each proposal shall not exceed one-third of all directors; Or replacement (excluding confirmation of resignation of directors) no more than one-fourth of the current directors
The position of the vice chairman was cancelled, and the chairman of the board of directors was changed from “more than half of the elections†of all directors to “more than two-thirds majority electionâ€
However, according to Article 303 of the Company Law: “Shareholders who hold more than 3 percent of the company’s shares individually or collectively may submit an interim proposal and submit it to the board of directors in writing ten days before the general meeting of shareholders. The board of directors shall Within two days after receiving the proposal, the other shareholders will be notified and the temporary proposal will be submitted to the shareholders meeting for consideration. In other words, the company law does not require the relevant shareholders to continue to hold shares for more than 12 months. The suspicion of artificially setting limits on statutory shareholder rights will ultimately be debatable.
Therefore, it is a feasible way to protect the management's control by rationally modifying the articles of association in accordance with the provisions of the Company Law. However, in the end, how to change the regulations, enterprises and lawyers need to study together.
2 Non-listed company management and its control
Method 1 to master the controlling stake is Wang Dao
The more shares a company has, the stronger the control over who is in control. This is the common sense that every business person knows. Then, to what extent should the management's equity be grasped to bring a sense of security? Usually, we refer to holding more than 67% of the shares as “absolute control†because it means that management has two-thirds of the voting rights. According to the provisions of the "Company Law": "The resolution of the shareholders' meeting must be passed by more than half of the voting rights of the shareholders present at the meeting. However, the shareholders' meeting made a resolution to amend the articles of association, increase or decrease the registered capital, and merge, separate and dissolve the company. Or the change of the company's form of resolution must be passed by more than two-thirds of the voting rights of the shareholders present at the meeting." Thus, "two-thirds" of the voting rights is a very attractive proportion, which represents management. The level of decision-making is difficult to shake.
Method 2 voting rights bring control
At the legal level, the advice we can give is to collect voting rights. There are many ways to collect voting rights, such as voting rights entrustment, signing a concerted action person agreement, and building a shareholding entity.
Indirectly strengthening management's control by building a shareholding entity is the most complex but also more stable and reliable of the three approaches. The common way of operation is: the management establishes a limited liability company or a limited partnership as the shareholding entity of the target company, and becomes the legal representative, the sole director, the sole general partner or the executive partner of the company. Achieve the effect of mastering the voting rights of the target company. It should be noted that if the shareholding entity is a limited partnership, the management's status must be a general partner rather than a limited partner, because the limited partnership is controlled by the general partner in accordance with the Partnership Law. The limited partners are not allowed to participate in the management and decision-making of the enterprise.
Method 3 sets restrictions
Setting restrictive clauses does not “enhance†the management's control, but it can play a defensive role.
Most of the restrictive clauses are reflected in the company's articles of association. On the one hand, restrictive clauses can give management “one-vote vetoâ€, such as some major issues for the company – mergers, divisions, dissolutions, corporate finance, company listings, annual budget settlements of companies, appointments and removals of major individuals, changes in the board of directors and many more. The management, especially the founder of the company, can ask that no vote is passed without his consent. As a result, even if the management's equity is diluted more seriously, it will not lead to the outcome of being swept away.
On the other hand, in order to win the “strategic highland†of the board of directors, in the company's articles of association, it is also possible to directly stipulate that a certain number of directors (generally more than half) of the board of directors are appointed by the core management. It should be noted that the Company Law restricts the scope of the statutory and intended matters of the statute. When establishing restrictive clauses, it must always avoid the framework of the legal system.
Method 4 other
In principle, according to the provisions of Article 37 of the Company Law, the shareholders' meeting has the right to elect and replace directors and supervisors who are not represented by employee representatives; therefore, the shareholders' meeting is entitled to remove the members of the board of directors at their own discretion. However, as mentioned above, for the management of the limited company, it is still possible to strive for strategy.
In addition, if a limited liability company has an employee representative director, the employee representative director cannot be arbitrarily removed by the shareholders' meeting. Article 44 of the "Company Law" stipulates that a limited liability company established by two or more state-owned enterprises or two or more state-owned investment entities shall have representatives of the company's employees. Article 67 stipulates that a state-owned sole proprietorship company shall have a board of directors to exercise its functions and powers in accordance with the provisions of Articles 46 and 66 of this Law. Directors shall not serve for more than three years. Employee delegates should be present on the board.
Moreover, it should be noted that an effective resolution to remove the board of directors can only be formed when the resolution of the removal of the director is the same as that of the election of the director. Article 105 of the Company Law stipulates that a company may elect a director by direct voting or cumulative voting. If a director elected by direct voting is elected, it shall be removed by direct voting. Similarly, if a director elected by a cumulative voting system is elected, it should be removed by means of a cumulative voting system. If the voting method does not match, it cannot be arbitrarily removed. Of course, foreign-invested enterprises such as foreign-owned enterprises, Sino-foreign joint ventures, and Sino-foreign joint ventures are not subject to this restriction.
3
Ma Yun's experience
When it comes to management's control, you have to mention the "Alibaba" star company. As the founder of Alibaba, Ma Yun still maintains a firm control over the group when he holds less than 10% of Alibaba's shares. It can be said that the management maintains control under a low shareholding ratio. representative. So how did he do it?
1 Board of Directors directly manages the company
The board of directors is the executor of the company. Within Ali, the board of directors has a very high right, and the election of directors is not an easy task.
First, 50% of Ali's directors are nominated by Ali Partners, who vote for the election of directors from the nomination of director candidates.
Secondly, Ma Yun, Cai Chongxin, and Softbank and Yahoo voted to reach an agreement, so that the directors nominated by Ali Partners can be elected to the board of directors.
Finally, if you want to amend the nomination right and related terms of the directors in the articles of association, the amendment must be approved by the shareholders attending the general meeting at the general meeting of more than 95% of the votes (the registration of the listed entities of the Ali Group is Cayman, Cayman’s company law does not have a specific shareholding ratio for the company’s special events, so Ali’s shareholders can agree on a higher shareholding ratio for the company’s special events. According to the disclosure of Ali's listing, the total number of Ali shares held by Ma Yun and Cai Chongxin is not less than 10%. Therefore, in the case of Ma Yun and Cai Chongxin disagreeing, the nomination of the directors of the partners can not be realized.
2 "Partner" decides the board of directors
As mentioned above, a partner has the right to nominate a director, and a director nominated by a partner can always have a position on the board. So how does Ali achieve the board of directors nominated by the partners to be elected to the board of directors?
First, partners have the exclusive right to nominate a simple majority (more than 50%) of the board of directors. One of the partners is a permanent partner. The permanent partner has been nominated for directors unless he retirees or leaves his job, is incapacitated, and is delisted by more than 50% of the voting by the partner. Ma Yun and Cai Chongxin are the permanent partners of Ali. People, so it can be said that Ma Yun always has the right to nominate directors.
Secondly, a director nominated by a partner becomes a member of the board of directors and must be approved by shareholders holding more than one-half of the voting rights at the annual general meeting. Ma Yun, Cai Chongxin and Softbank, Yahoo agreed by voting agreement, Softbank (in the case of holding no less than 15% of Ali), Yahoo voted for the directors nominated by the partners at the general meeting. Since the proportion of Ali shares held by Ma Yun, Cai Chongxin, Yahoo and Softbank reached 69.5%, the candidate for the director nominated by the partner was elected as a director without suspense.
Moreover, the partnership system is foolproof in ensuring the control of the partner, because even if the candidate nominated by the Ali partner is not selected as a director by the shareholders, or if he or she leaves the board for any reason after the election, the Ali partner has the right to designate Temporary transitional directors fill the vacancies until the next annual general meeting of shareholders. Moreover, at any time, for any reason, when the number of board members is less than the simple majority nominated by the Ali partner, the Ali partner has the right to appoint an insufficient number of board members to ensure that the simple majority of the board members is a partnership. Nominations.
It can be said that the partners can always let their own people exercise the rights of the directors. The partners including Ma Yun actually control more than half of the directors of the company through such procedures, and then realize the management of the company through the board of directors.
3 High-tech entry barriers to ensure the consistency of partners
A series of thoughtful system design is nothing more than to ensure that the partners have control over Ali, so whether the partners are always consistent, isn't there any conflict of interest between other partners and Ma Yun when nominating directors?
Ali's partner has strict conditions, not only to hold the company's shares, but also to make positive contributions to the company's development; to the company's culture is highly recognized, willing to do their best for the company's mission, vision and values. In terms of procedures, it is necessary to be nominated by the partners to the partner committee, and more than 75% of the partners voted to pass the strict screening. The partners selected by such a threshold are basically consistent with the recognition of the company's operation and development.
Although human variables cannot be completely avoided, compared with the equity-based and directly-capitalized control decision criteria, through the partner system, the consideration of the human factor is determined when determining the company’s control subject, plus strict The selection criteria made the core team goal of leading the development of the company consistent with Ma Yun, and the company's control subject was stable.
shaoxing rongxi textile co.,ltd , https://www.rongxifabric.com