Even if the minority shareholders object to the capital increase, the resolution of the shareholders' meeting will still be passed, but without their consent, the shareholders shall not be deprived of the priority of subscription according to law.
Without informing all shareholders, the company held a shareholders' meeting to decide to increase the registered capital, and some minority shareholders were seriously diluted without knowing it.
Moreover, after the minority shareholders' shares were diluted, the company transferred all the shares of the company and registered the change.
How to protect minority shareholders' preemptive right to subscribe for capital increase, and what litigation strategy should be adopted? As the other side of capital increase, how to prove that minority shareholders are aware of capital increase?
Let's take a look at this equity story.
0 1
Who moved my equity?
In 2004, Huang Zhong and Jin Gyeong invested 4 million yuan to set up Hongguan Company, with Huang Zhong holding 20% of the shares.
In 2006, Hongguan Company changed its registered capital to150,000 yuan, and Huang Zhong's shareholding ratio decreased to 5.33%.
With this change, the company has a new shareholder, Xinbao Company, with a capital contribution of 65,438+0,654,380,000 yuan, holding 73.33% of the shares. However, Hongguan Company returned 1 1 ten thousand yuan to Xinbao Company in the form of "loan" after completing the capital verification.
There is another fact. In 2009, Jin Gyeong, as the shareholder representative of Hongguan Company, transferred all the shares of Hongguan Company to Suzhou NASS Company for 8,248,500 yuan. Subsequently, Hongguan Company was changed to Jiangsu NASS Company in the industrial and commercial authorities, and its shareholders were also changed to Suzhou NASS Company and Yuan Hua Company.
As we all know, the company needs to submit a resolution to the shareholders' meeting to change its industrial and commercial registration. Of course, the change of the industrial and commercial bureau is a formal review, and it does not check the authenticity of the resolution.
After consulting the resolutions of the shareholders' meeting submitted by Hongguan Company to the Administration for Industry and Commerce, he agreed to the revised Articles of Association; The registered capital of the company increased to 654.38+05 million yuan, and the new investment was 654.38+065.438+00 million yuan, which was invested by Xinbao Company.
Xinbao Company produced two pieces of evidence to prove the legality of capital increase. According to the resolution of the shareholders' meeting of Xinbao Company, Xinbao Company held a meeting of all shareholders (including Huang Zhong) and unanimously agreed that Hong Xiang Crown Company invested 65,438+065,438+000,000 yuan to hire Huang Zhong and other three people to work in Hongguan Company; According to the articles of association of Hongguan Company, Hongguan Company held a meeting of all shareholders, and unanimously agreed that Xinbao Company Hong Xiang Guan Company would invest 654.38+065.438+000,000 yuan.
Seeing this, Huang Zhong and another shareholder think that the articles of association and the resolutions of the shareholders' meeting are false.
Therefore, Xinbao Company filed an application to verify the handwriting of "Huang Zhong" on the resolutions of the shareholders' meeting of Xinbao Company and Hongguan Company.
If the appraisal of Huang Zhong's signature is true, then Huang Zhongke has nothing to say. Unexpectedly, after appraisal, Huang Zhong's signature handwriting on the resolution of the shareholders' meeting was not written by the same person as the signature handwriting on the comparative sample.
In other words, Huang Zhong, as a shareholder of the company, did not sign the company resolution.
Huang Zhong did not attend the shareholders' meeting, and his 20% equity was diluted to 5.33%. How can he recognize it?
Therefore, on 20 13, Huang Zhong sued the court, requesting confirmation that he held 20% equity of Hongguan Company from the establishment of the company to the equity transfer.
02
Litigation strategy is very important.
Let's have a look. Huang Zhong didn't ask to cancel the capital increase, not to ask for the change to be invalid, but directly asked to confirm that he held 20% of the registered capital of Hongguan Company of 6,543,800 yuan.
Some people say, has Huang Zhong's claim exceeded the limitation of action?
Let's look at Huang Zhong's statement. He asked for confirmation of his shareholder rights. Do you know this litigation strategy?
As far as the company law is concerned, if the minority shareholders think that the resolution procedure of the shareholders' meeting violates the law and the company's articles of association, they may request the court to cancel it within 60 days from the date of making the resolution; If the resolution of the shareholders' meeting is deemed to be invalid in violation of laws and administrative regulations, it shall not be subject to the 60-day limit.
Huang Zhong's withdrawal of the lawsuit is inappropriate, but the confirmation lawsuit is not limited by time and can be filed at any time.
The same facts, different litigation strategies, the results may be very different. Legal knowledge can be searched, but legal practical skills cannot be searched.
03
The priority of minority shareholders to subscribe for capital increase is inalienable.
The court of first instance held that under the premise that Huang Zhong had not disposed of his equity, unless Hongguan Company made a statutory capital increase, its shareholding ratio should not be reduced.
Is it legal for Hongguan Company to increase its capital? This involves the issue of shareholders' preemptive right when the company increases its registered capital, which is related to the protection of the rights and interests of small and medium shareholders. The shareholders' preemptive right to increase capital cannot be confused with the resolutions of the shareholders' meeting.
According to the articles of association of Hongguan Company, the increase of registered capital shall be decided by the shareholders' meeting and approved by shareholders representing more than two thirds of the voting rights. However, the validity of the resolution of the shareholders' meeting is based on the legal convening of the shareholders' meeting and the protection of minority shareholders' right to subscribe for capital increase.
Why?
Don't forget, limited liability companies pay more attention to human nature. In addition to ensuring that the equity is not diluted, the preemptive right also plays an important role in preventing new shareholders from joining to ensure the trust between existing shareholders.
Even if the minority shareholders object to the capital increase, the resolution of the shareholders' meeting will still be passed by shareholders with more than two-thirds of the voting rights, but the shareholders' preemptive right according to law shall not be deprived without their own consent.
Facts have proved that Hongguan Company's "capital increase" 1 1 10,000 yuan, and the shareholders' meeting was not held, which violated the articles of association and laws of Hongguan Company and was an invalid act. Judging from the results, Xinbao Company withdrew RMB 65,438+0,654,380+0,000, which cannot be considered as fulfilling its capital contribution obligations.
Therefore, Hongguan Company reduced Huang Zhong's shareholding ratio in the name of capital increase, which violated Huang Zhong's legitimate rights and interests. The court of first instance ruled that Huang Zhong's shareholding ratio was still 20%.
04
Litigation is about evidence.
Xinbao Company refused to accept the appeal, claiming that Huang Zhong borrowed the funds from Xinbao Company to jointly establish Hongguan Company with others. At that time, Huang Zhong was a shareholder of Xinbao Company and served as a manager, and he was aware of the shareholding of Hongguan Company. Request the court of second instance to revise the judgment and reject Huang Zhong's claim.
Other shareholders also raised objections: Hongguan Company's registered capital of 4 million yuan was borrowed from Xinbao Company and returned, but the court of first instance confirmed the registered capital of 4 million yuan but denied the capital increase of 1 1 10,000 yuan, which was also returned after capital contribution, and the court found that the results were different.
Whether the judgment can be changed depends on whether Huang Zhong knows about the capital increase.
Hongguan Company's Articles of Association clearly stipulates that the company's capital increase should be decided by the shareholders' meeting, but Huang Zhong did not sign the resolution of the shareholders' meeting, and Huang Zhong did not participate in the voting of the shareholders' meeting. It cannot be determined that Huang Zhong knew about the capital increase according to the resolution of the shareholders' meeting.
Regardless of whether Huang Zhong actually knows about the capital increase, the lawsuit pays attention to evidence.
In the absence of evidence to prove that Huang Zhong knows, the capital increase is invalid and has no legal binding force on Huang Zhong. Huang Zhong's equity in Hongguan Company should not be reduced due to the registered capital of 654,380,500 yuan after the industrial and commercial change registration, but the equity should still be distributed among shareholders according to the equity ratio of 20%.
It is an inevitable result that the second-instance judgment rejected the appeal and upheld the original judgment.
Author Qian Qi, lawyer of Chengwu Law Firm.