Shareholders' agreement is a supplement to the articles of association, but the company law stipulates that "unless otherwise stipulated in the articles of association", only the articles of association are mentioned, but the shareholders' agreement is not mentioned. It is suggested that the articles of association be amended to directly agree to avoid unnecessary troubles in the future.
This truth has been made clear, how to stipulate it in the articles of association? That's the point.
In order to solve the equity imbalance caused by different capital shares, resource shares, human resources shares and management shares, shareholders may agree to share the same shares but have different voting rights and dividend rights.
Many minority shareholders don't know enough about voting rights, knowing that they can't get more voting rights than their shareholding ratio, and they are more concerned about their dividend rights. If the founder wants to get more voting rights than his own shareholding, he must give up the dividend right. Otherwise, why should somebody else's voting right be lower than his own shareholding ratio?
The articles of association are the constitution of the company, and the law respects the commercial autonomy of shareholders.
On the premise of taking the amount of capital contribution as an important reference, and considering the difference between the resources needed for the development of the company and the resources actually invested by the resource providers, the shareholders can directly stipulate the voting rights ratio of each shareholder in the company's articles of association after reaching an agreement through friendly negotiation. Of course, shareholders can also stipulate in the articles of association that the voting principle of "one person, one vote, the minority is subordinate to the majority" is adopted when the shareholders' general meeting decides to vote.
Even, it can be agreed that a shareholder has no voting right or extremely low voting right, but it is not bad to ensure that when distributing the company's profits, it will take precedence over other shareholders to pay dividends, and then other shareholders will pay dividends.
There should be many ways. According to the actual situation of the company, the shareholders of the company can tailor the "different rights with the same share" that conforms to the development of their own company and does not violate the basic principles of the company law.
However, when designing enterprise control rights, there are two problems that need to attract entrepreneurs' attention.
First, "different rights for the same share" can only be stipulated in the company's articles of association when the company is established, and it should be unanimously agreed by all shareholders.
If the controlling shareholder abuses the principle of capital majority decision at the shareholders' meeting, ignores the interests of minority shareholders and modifies the voting rules in the articles of association, it is very likely that the legitimate voting rights of minority shareholders will be restricted or deprived. Even if there is such an agreement, it will be recognized as invalid by the court.
Second, under the current registered capital subscription system, some shareholders subscribe for a large proportion, but pay very little. The Company Law advocates in principle that "the shareholders' meeting shall exercise their voting rights according to the proportion of capital contribution", but it is not clear whether the capital contribution is subscribed or paid-in. Therefore, it is suggested that shareholders should make it clear in the articles of association according to the actual situation.
If there are paid-in capital contributions among the shareholders of the company, they may agree to exercise their voting rights in proportion to the paid-in capital contributions. Under special circumstances, all shareholders have no actual contribution. At this time, it is appropriate to stipulate that the shareholders' meeting shall exercise the voting right in proportion to the subscribed capital contribution; Once the shareholders have actually paid part or all of their capital contribution, they can change the voting rules of the shareholders' meeting and exercise their voting rights in proportion to the paid-in capital contribution, which is fair and reasonable.
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