The articles of association is the expression of shareholders' agreement, which stipulates the basic principles of the company's organization and activities, and is the articles of association of the company. Articles of association have the basic characteristics of legitimacy, authenticity, autonomy and openness.
When formulating the articles of association, investors must:
1. Formulate the articles of association according to the characteristics and needs of the company.
No country in the world has exactly the same constitution as another country, because no country is exactly the same as other countries. Therefore, no company can completely copy the articles of association of other companies.
For example, the articles of association of a company are mostly governed by the second paragraph of Article 44 of the Company Law: "The shareholders' meeting shall make a resolution to amend the articles of association, increase or decrease the registered capital, and the resolution on merger, division, dissolution or change of corporate form of the company must be passed by shareholders representing more than two thirds of the voting rights. "
However, if a company has only two shareholders, and their shares are 5 1% and 49% respectively, is it necessary to make this provision? Because in essence, it has become a requirement for unanimous consent of the shareholders' meeting. If two shareholders hold more than 67% and less than 33% respectively, the essence of this clause is that shareholders below 33% have no decision-making power.
(1) The Articles of Association shall be formulated according to the characteristics of shareholders and the shareholding ratio.
The process of formulating the articles of association is also the process of determining the rights and status of shareholders in the future company management decision. The reasonable establishment of the articles of association is the result of the game of shareholders' interests. And this kind of interest game is inseparable from the characteristics of shareholders and the shareholding ratio.
For example, for minority shareholders, expanding the proportion of voting items at the general meeting of shareholders is equivalent to fighting for their right to speak in the future. If all major issues are written into the articles of association that can only be adopted with the unanimous consent of all shareholders, minority shareholders will have more advantages in the company's operation, which is more efficient than protecting the legitimate rights and interests of minority shareholders through mandatory provisions of the company law.
Another example is whether the directors are appointed by shareholders or elected by the shareholders' meeting according to the proportion of shares. The difference lies in whether shareholders prefer to manage the company by insiders or introduce outsiders.
The characteristics of shareholders include the relationship between shareholders, differences in interests or matters of concern to shareholders, and so on. The different shareholding ratio of shareholders will directly affect the future implementation of the articles of association and the operating efficiency of the company.
In a company with a large number of shareholders and scattered shareholding ratio, if most of the functions and powers of the company are set in the company's articles of association to be approved by the company's shareholders' meeting, the operation of the company will inevitably be inefficient. However, in a company with only two or three shareholders, and the equity ratio is quite different (for example, 90% and 10% respectively), if the articles of association stipulate that the specific matters of operation and management can only be passed with unanimous consent of the shareholders' meeting, then the company is likely to be deadlocked in the future.
(2) Formulate articles of association according to the company's industry characteristics and operating mechanism.
Different industries, different decision-making and implementation requirements, and different operating mechanisms all need different articles of association. When the provisions of the company's articles of association adapt to the company's industry characteristics and implementation mechanism, the contradictions between shareholders and between shareholders and the company will be reduced, otherwise, disputes will continue.
In an industry that needs timely and rapid decision-making, or in a market full of risks and opportunities, the management authority of the company should be more delegated to the management such as the company manager; In an industry that needs to be cautious, the management authority of the company should be more concentrated in the shareholders' meeting.
When the company mainly relies on human resources, shareholders' voting rights and dividend rights should be distinguished from the proportion of capital contribution to reflect the role of people; When the company operates more on the basis of capital and equipment, shareholders' voting rights and dividend rights should be consistent with their capital contribution ratio to reflect the role of capital. These require investors to consider the balance in advance and make clear provisions in the company's articles of association.
Two, the articles of association should be detailed, clear and operable.
The company law stipulates the necessary contents of the articles of association, and also stipulates the relevant contents in principle. Many investors in small and medium-sized enterprises often think that the law has clearly stipulated that they should copy the articles of association. I have no idea that the articles of association have lost their necessity. In fact, the role of the articles of association is to refine the contents of these laws and regulations, making them operable and in line with the actual situation of the company.
In addition, it is also important to stipulate the consequences and remedies for violating the articles of association. For example, the second paragraph of Article 42 of the Company Law stipulates: "Shareholders attending the meeting shall sign the minutes of the meeting." But what does it mean if shareholders attend the meeting and refuse to sign the minutes? Is it to determine whether shareholders abstain, object or agree? The same problem applies to the procedures of board meetings and so on.
Three. As far as possible, write the contents and agreements that shareholders care about into the articles of association.
Whether it is the agreement in the company's establishment agreement or the agreement reached between shareholders on company management, rights restriction and interest distribution during the company's operation, it can and should be the content of the company's articles of association. At the same time, predicting the possibility of disputes as much as possible and establishing a settlement mechanism will be the focus of the company's articles of association.
Only by writing these contents into the company's articles of association and becoming the rules of the company's operation can the company's shareholders establish a good relationship with the company, and the company's autonomy can be incorporated into the legal system and protected by law.
Extended data:
The articles of association are the basic norms about the organization and behavior of a company. The articles of association are not only the autonomy regulations of the company, but also the important basis for the state to manage the company. The Articles of Association has the following functions:
1. The articles of association are the most important conditions and documents for the establishment of a company.
The establishment procedure of a company begins with the conclusion of the articles of association and ends with the registration of establishment. China's "Company Law" clearly stipulates that the establishment of articles of association is one of the conditions for the establishment of a company. The examination and approval authority and the registration authority shall examine the articles of association of the company and decide whether to approve or register. The company has no articles of association and cannot be approved; The company has no articles of association and cannot be registered.
2. The Articles of Association is the basic legal document to determine the relationship between rights and obligations of the company.
Once the Articles of Association are approved by the relevant departments and approved by the company registration authority, they will become legally effective to the outside world. The company enjoys various rights and undertakes various obligations in accordance with the articles of association, and the behaviors that conform to the articles of association are protected by the state laws; In violation of the articles of association, the relevant authorities have the right to intervene and punish.
3. The Articles of Association is the basic legal basis for the company's foreign business dealings.
Because the articles of association stipulate the principles and detailed rules of the company's organization and activities, including business objectives, property status, rights and obligations, etc. It provides conditions and credit basis for investors, creditors and third parties to conduct economic exchanges with the company. Anyone who is associated with the company's economy according to the company's articles of association can be effectively protected according to law.
In view of the above functions of the articles of association, it is necessary to strengthen the legal effect of the articles of association. This is not only the need of company activities, but also the need of the healthy development of market economy.
References:
Baidu Encyclopedia-Articles of Association