No, the two founders of Hangzhou Lei Long Network Technology Co., Ltd. (hereinafter referred to as "Lei Long Company") accidentally fell into the "sinkhole" when accepting investment.
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In 2009, Guo Jian established Lei Long Company, and Yu Renyuan held 45% of the shares respectively, and the rest 10% was distributed to employees. The main products are student loans and online loan purchase platforms for college students. It is the earliest Internet-based P2P credit lending service platform in China.
20 13, 12, 18, Hangzhou kefa venture capital partnership (limited partnership) (hereinafter referred to as "Hangzhou kefa") invested 130,000 yuan in Lei Long company, of which11650.
201On June 7th, April, Lei Long Company went through the formalities of industrial and commercial change, and its legal representative was changed to Ren Yuan, and its registered capital was1111/000. The paid-in capital is111110000, and the plaintiff is the shareholder (1 1. 165438).
On March 5, 20 14, Yu Renyuan, Guo Jian and Hangzhou Kefa signed a gambling agreement. When Lei Long Company fails to go public successfully before 20 17 12 3 1, or there are substantial obstacles to its listing, Hangkefa has the right (but not the obligation) to ask Ren Yuan and Guo Jian to buy back all its shares. The repurchase price is higher between A and B: A = 2600 million yuan+the shares held by Hangzhou Kefa are higher than the accumulated net profit of the company after the completion of this equity transfer-accumulated dividends; B = 2600 million yuan (1+n* 10%)- accumulated dividends (where: n= investment years, calculated by dividing the actual investment days of Hangzhou Kefa by 365). At the same time, Hangkefa agreed to have one-vote veto on major issues, and has the right to restrict the sale of shares of Guo Jian and Yu Renyuan.
Next, the two founders of Lei Long, Yu Renyuan and Guo Jian, began to have major differences. Hangkefa also took the opportunity to make a big fuss and staged the annual drama of the company's control struggle:
Round 1
20 14 May, Yu Renyuan wanted to lay off most employees and develop his own independent career. Guo Jian resolutely disagreed, and the contradictions between the two sides began to intensify. However, Hangkefa took advantage of the business trip in Guo Jian and used the official seal of Lei Long Company, which made it difficult for Guo Jian to make business decisions and the position of general manager was in name only. The first round: Hangzhou Kefa wins.
Second round
At the board meeting on 201165438+12 October, Yu Renyuan and Chen Xiaofeng asked Guo Jian to resign as general manager because Ren Yuan took over. Guo Jian believes that because the other party has mastered the official seal and absolute controlling interest, he has no choice but to resign as general manager. For the gambling agreement signed before, Guo Jian trusted Hangkefa, and did not sign a written exit document on the gambling agreement. Finally, Guo Jian agreed to transfer all its shares (13.96%) to Ren Yuan with a net asset of more than 2 million yuan, and quit the company. The second round: Hangzhou Kefa wins.
Third round
2065438+June 3, 2008, Hangzhou Kefa sued Ren Yuan and Guo Jian, and finally the Shangcheng District People's Court of Hangzhou ruled that Ren Yuan and Guo Jian paid Hangzhou Kefa 38,294,794.5 yuan for share repurchase, counting from 2065438+February 4, 2008. 2065438+On April 22, 2009, Hangzhou Intermediate People's Court rejected the appeal and upheld the ruling of the first instance. After the dust settles, Yu Renyuan and Guo Jian need to pay Hangkefa 38 million yuan for share repurchase. Round 3: Hangzhou Kefa wins.
In this case,
What does lawyer Ming think?
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(1) Control of the company
Corporate control right is closely related to corporate governance structure. Entrepreneurs must arrange and design corporate governance structure and decision-making mechanism to ensure absolute control over the company. 34%, 5 1% and 67% are important dividing lines in the setting of the company's equity structure. Among them, 34% is one-vote veto on major issues of the company, 565,438+0% is relative control of the company, and 67% is absolute control of the company. Guo Jian's shareholding ratio before investment: 45%, 45% and10%; After the investor enters, the post-investment shareholding ratio is 36.5%, 33%, 20%, 10.5%. In other words, if the founder wants to absolutely control the company, especially in the early stage of starting a business, he can't touch the 67% line under any circumstances.
To take a step back, if it is difficult for the founder to maintain 67% of the shares in the case of introducing multiple investors, he should also consider setting up AB shares to ensure his continuous control in the company. Entrepreneurs don't want to go out, the distribution of benefits is superficial, and controlling the company is fundamental.
(B) the importance of official seal
The Supreme Court made it clear in the Minutes of Nine Persons that "when trying a case, the people's court should mainly examine whether the undertaker has the right of representation or agency when stamping, so as to determine the validity of the contract according to the rules concerning the right of representation or agency." In short, the official seal is not a "decree", the court is "looking at people, not the seal", and getting the official seal does not mean getting control of the company.
Just because Hangkefa has mastered the official seal, Guo Jian thinks that the other party has mastered the control right of the company, thus giving up his own control right and business decision-making right, which exaggerates the importance of the official seal and fails to take appropriate measures to safeguard rights. Not long ago, Li Guoqing led a big shot to recapture the official seal of Dangdang. In many people's eyes, the official seal seems to represent the company, and controlling the official seal means controlling the company, but it is not exactly the case. It is still necessary to judge whether to control the company according to the company's substantive business decision-making power.
(3) Gambling agreement
The gambling agreement is designed by investors and financiers to solve the three major problems of the future development of the target company, such as uncertainty, information asymmetry and agency cost, when they reach an equity investment and financing agreement. It includes an agreement to evaluate the target company in the form of monetary compensation and equity compensation and adjust the future valuation of the target company. Gambling in a broad sense also includes dynamic trading agreements in which investors withdraw through IPO, share repurchase and mergers and acquisitions.
In the gambling agreement signed by Yu Renyuan, Guo Jian and Hangzhou Kefa, it is stipulated that he is the subject of repurchase obligation and compensation obligation, but there is no clear distinction between the subjects of repurchase obligation and compensation obligation. Later, when withdrawing from the equity transfer, there was no written agreement on compensation and repurchase obligations, only the verbal agreement of the other party.
The correct way is: it should be clearly stipulated in the gambling agreement that the subject of the repurchase obligation should be the actual controller or controlling shareholder who has control over the company at the time of the repurchase obligation, at least the shareholder who is still registered on the shareholder list; Secondly, if there is no proper agreement when signing the contract, a clear exemption should be agreed for the quitter in the form of a supplementary agreement when withdrawing; Finally, please solve the fatal problem of exemption of repurchase obligation by written agreement. A "verbal promise" that is difficult to obtain proof can only be a "blank check".
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