1. According to the articles of association of a joint stock limited company, the cumulative voting system shall be adopted for the election of directors and supervisors.
The Company Law stipulates that the cumulative voting system is not mandatory, and companies are free to choose and apply it. The cumulative voting system can make candidates representing the wishes of minority shareholders enter the board of directors and the board of supervisors and protect the interests of minority shareholders. The minority shareholders of a joint stock limited company should make it clear in the articles of association that the cumulative voting system should be adopted in the election of directors and supervisors, so that minority shareholders can have a place on the board of directors and the board of supervisors and reflect their legal requirements.
Second, through the definition of related concepts, we can better protect minority shareholders from exercising their right to know.
The Company Law stipulates that the shareholders of a limited liability company have the right to request to consult the company's accounting books. However, the law does not clearly stipulate whether consulting accounting books includes consulting accounting vouchers. Consulting accounting vouchers is the most important means for shareholders to understand the company. Therefore, it is clear in the company's articles of association that the equity has the right to consult accounting vouchers, which can effectively protect the rights and interests of minority shareholders.
The Company Law also stipulates that the company may refuse to provide access to the accounting books if it has reasonable grounds to believe that shareholders have improper purposes and may harm the legitimate interests of the company. If "illegitimate purpose" is not defined, the legitimate demands of minority shareholders will often be rejected by large shareholders on this ground.
Third, strive for the proportion of employee representatives in the election of the board of directors and the board of supervisors.
The Company Law stipulates that the board members of a limited liability company and a joint stock limited company may include representatives of employees of the company. The composition of the board of supervisors shall include an appropriate proportion of shareholders' representatives and employees' representatives. The number and conditions for employee representatives to serve as directors and supervisors of the company can be clearly stipulated in the articles of association. As directors and supervisors, employee representatives seem to have nothing to do with minority shareholders, but the increase of employee representatives can weaken and limit the arbitrariness of controlling shareholders.
Fourth, strive for the discussion methods and voting procedures of the shareholders' meeting and the board of directors in the company's articles of association to help all shareholders and directors express their opinions and limit the arbitrary behavior of major shareholders.
The Company Law stipulates: "Unless otherwise stipulated in this Law, the discussion methods and voting procedures of the shareholders' meeting shall be stipulated in the company's articles of association. "The discussion methods and voting procedures of the board of directors shall be stipulated in the articles of association of the company, except as otherwise provided by this Law. "
Therefore, the number and proportion of minority shareholders in the shareholders' meeting and the board of directors can be agreed at the same time. If the number and proportion are lower than the specified number, the meeting may not be held to promote the voting result and protect the legitimate interests of minority shareholders.
5. Specify the specific conditions and calculation methods for directors, supervisors and senior managers to bear the liability for compensation to the company.
The Company Law stipulates: "Directors, supervisors and senior managers who violate laws, administrative regulations or the provisions of the Articles of Association when performing their duties shall be liable for compensation." For the first time, violation of the Articles of Association is regarded as one of the conditions for directors, supervisors and senior managers to bear the responsibility.
The Company Law also stipulates: "The controlling shareholder, actual controller, directors, supervisors and senior managers of the company shall not use their relationship to harm the interests of the company. Anyone who violates the provisions of the preceding paragraph and causes losses to the company shall be liable for compensation. " How to compensate, there should be a specific loss calculation method.
Therefore, it should be clearly stipulated in the company's articles of association that directors, supervisors and senior managers should bear the specific situation of the company and the third party and the calculation method of losses, so as to make the above legal provisions operational.
6. stipulate the fiduciary duty of the controlling shareholder in the articles of association.
In order to limit and eliminate the negative impact brought by the principle of capital majority, and to protect minority shareholders, we can consider striving to stipulate in the articles of association that the controlling shareholder has the following two fiduciary obligations:
First, the exercise of minority shareholders' rights should be guaranteed during the convening and resolution of the shareholders' meeting.
Second, the shareholders' meeting and the decision of the board of directors should safeguard the interests of minority shareholders. It should be made clear in the company's articles of association that although the shareholders' meeting can make resolutions according to the wishes of the majority shareholders, it should ensure that the company's resolutions do not infringe on the interests of minority shareholders.
Seven, in the nomination of directors and supervisors, election methods and the replacement of incompetent directors and supervisors, and strive to establish a system conducive to minority shareholders.
The proportion of candidates for directors and supervisors nominated by minority shareholders in the list submitted to the shareholders' meeting for voting shall be clearly stipulated in the articles of association. When the shareholders' meeting of a limited liability company elects the directors and supervisors of the company, the shareholders may refer to the provisions of the joint stock limited company and strive to put forward the requirements of cumulative voting and differential election to the company. It can be stipulated in the company's articles of association that directors and supervisors are incompetent, shareholders have the right to propose dissolution, and directors and supervisors should have clear responsibilities. If he is unable to perform his duties, the conditions and procedures for resignation shall be determined in the articles of association.
8. Necessary restrictions shall be imposed on the voting rights of major shareholders or controlling shareholders.
The Company Law stipulates that the voting rights of shareholders will be restricted in matters such as investing in other enterprises and providing guarantees for others, but in other cases, the voting rights of interested shareholders are not restricted. This is very dangerous for minority shareholders. For example, in other related party transactions other than guarantee, if the voting rights of related parties are not restricted, the rights and interests of non-related parties will be harmed, and the controlling shareholders will often make decisions. It needs to be clearly stipulated in the articles of association that all related shareholders in related party transactions have no voting rights. When determining the remuneration of directors and supervisors, if the related shareholders are directors and supervisors, their voting rights should also be restricted.
The voting rights of shares in the case of mutual shareholding of companies should also be restricted. For example, it can be agreed that subsidiaries have no voting rights in the parent company. In order to prevent controlling shareholders from using mutual shareholding to harm the interests of minority shareholders, we can also strive to prohibit the controlled company from holding shares in the holding company in the company's articles of association.
Nine, expand the applicable conditions of dissenting shareholders' share purchase rights.
Although the company law stipulates the shareholder withdrawal system of a limited liability company. However, when the company is deadlocked, the major shareholders occupy and abuse the company's assets, deprive shareholders of the right to participate in the company's affairs, and it is difficult for shareholders to continue their cooperation for personal reasons, the small shareholders in trouble still cannot quit the company.
Therefore, in the articles of association, the conditions for dissenting shareholders to exercise their share purchase rights are further stipulated. For example, it can be stipulated in the company's articles of association that when the major shareholder makes decisions without authorization, which causes certain losses to the company's property and reputation, or when the major shareholder seriously infringes on the interests of the minor shareholder and encroaches on the company's property, the minor shareholder has the right to quit the company. If negotiation fails, it may be agreed to bring a lawsuit to the court. It can be stipulated in the company's articles of association that the withdrawal price of shareholders shall be determined through consultation between the withdrawing shareholders and the equity transferee. If negotiation fails, relevant institutions shall be entrusted for evaluation or bring a lawsuit to the people's court. Through these agreements, minority shareholders can easily withdraw their shares.
X. strive for the separation of the chairman and the manager.
At present, most joint-stock companies are dominant, and most limited liability companies have controlling shareholders. Controlling shareholders and controlling shareholders often occupy the majority in the company's board of directors, and the chairman is often the controlling shareholder or controlling shareholder. If the chairman and manager are held by one person again, minority shareholders will lose their right to speak in the decision-making process and implementation process. Minority shareholders can fight for the position of manager, or they can suggest hiring managers from outside. At least, the situation that two positions in many companies are held by one person should be eliminated now.
Xi。 In the articles of association of a joint stock limited company, it is agreed to implement the power of attorney collection system to improve the voting rights entrusted by minority shareholders.
With the help of proxy collection system, decentralized shareholders can exercise their voting rights uniformly, which is conducive to protecting the interests of minority shareholders and preventing large shareholders from abusing their rights at will.
Twelve, the establishment of shareholder audit request system.
According to the articles of association, when shareholders have doubts about the company's financial status, they have the right to hire auditors directly from outside the company to audit the company's financial status.
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