Legal situation of shareholders of a limited company requesting the company to buy back shares.
Article 74 of the Company Law is under any of the following circumstances, the shareholders who voted against the resolution of the shareholders' meeting may request the company to purchase its equity at a reasonable price:
The company has not distributed profits to shareholders for five consecutive years, but the company has made profits for five consecutive years and meets the conditions for distributing profits stipulated in this Law;
The merger, division or transfer of the company's main property;
Upon the expiration of the business term stipulated in the Articles of Association or other dissolution reasons stipulated in the Articles of Association, the shareholders' meeting will adopt a resolution to amend the Articles of Association to make the Company survive.
If the shareholders and the company fail to reach an equity purchase agreement within 60 days from the date of adoption of the resolution of the general meeting of shareholders, the shareholders may bring a lawsuit to the people's court within 90 days from the date of adoption of the resolution of the general meeting of shareholders.
Share repurchase is the legal right of minority shareholders;
In order to effectively protect the legitimate rights and interests of minority shareholders, the company law clearly stipulates the rights of minority shareholders to buy back shares. The share repurchase right of the shareholders of a limited liability company means that under some special circumstances stipulated by law, the dissenting shareholders have the right to ask the company to buy their shares.
Dissenting shareholders' share repurchase procedures:
Generally speaking, share repurchase will have a great impact on the company, other shareholders and creditors of the company, so the repurchase must generally be reviewed by the board of directors and approved by a majority vote of shareholders. According to the provisions of the Company Law, the exercise of dissenting shareholders' share repurchase claims includes agreement repurchase and litigation repurchase.
1. Agreement repurchase:
When a limited liability company holds a shareholders' meeting to consider the matters listed in Article 74 of the Company Law, the shareholders who vote against it may exercise the right to request the company to buy its shares at a reasonable price.
Within 60 days after the resolution of the general meeting of shareholders is passed, the dissenting shareholders agree to buy back shares from the company. The successful negotiation parties sign a written agreement, and the company will buy shares at a reasonable price. Agreed repurchase is a manifestation of the autonomy of the parties, and there is no limit on the number and time of holding shares, so the agreement of the parties should be respected.
2. Litigation repurchase:
If the dissenting shareholders of a limited liability company fail to reach an agreement with the company on share repurchase, they may directly sue the company for share repurchase. According to the provisions of the Company Law, shareholders can bring a lawsuit to the people's court within 90 days from the date when the resolution of the shareholders' general meeting is passed. Litigation repurchase can only be filed on the premise that the agreement repurchase fails. Agreement repurchase is the pre-procedure of litigation repurchase, and the following issues deserve attention:
(1) Plaintiff qualification.
In the lawsuit, the dissident shareholder is the plaintiff, the company is the defendant, and the dissident shareholder brings a payment lawsuit. The law does not stipulate the time and number of shares held by dissenting shareholders when they file a lawsuit, but it limits the plaintiff's qualification. The plaintiff must be an dissenting shareholder who actually contributes capital and holds shares. If it is a performance stock or a nominal shareholder, it should not enjoy the right to litigation. Without capital contribution, unjust enrichment will easily occur. The new company law stipulates that the limitation of action is 90 days, which is relatively short. It is not clear whether it is a statute of limitations, nor does it stipulate whether the statute of limitations can be suspended, interrupted and extended. Lawyers believe that the 90-day period is not a statute of limitations.
(2) Time limit for litigation
The limitation of action stipulated in the Company Law is 90 days, which is relatively short. The 90-day period is a predetermined period and will not be suspended, interrupted or extended because of anything. If a shareholder fails to file a lawsuit within 90 days, his right to claim repurchase according to law shall be extinguished and he can no longer claim it. The starting point of 90 days is generally calculated from the date when the resolution of the shareholders' meeting is passed. However, if a shareholder is unaware of the adoption of the resolution of the shareholders' meeting because the notice of the company is invalid, it can be counted from the day when he knows the content of the resolution of the shareholders' meeting.
On the determination of repurchase price;
As for the price of repurchase, the company law only stipulates that the repurchase should be based on a reasonable price, which is a principled provision, and the price should be based on the agreed price. If the price is determined by the court, it shall be reasonable and legal, and shall be determined by the output value of the repurchased shares as a proportion of the company's net assets at the time of the cause of action.
(3) Disposal after repurchase:
After a limited liability company repurchases its shares, it shall handle the corresponding change registration in time. According to the law, the company should cancel its registration within 10 days after the repurchase event. If it cannot be cancelled, it shall be cancelled by transfer. If it cannot be handled within three months, it will be cancelled. After cancellation, it shall be re-approved and registered for industry and commerce.