The court recognized the validity of the delisting clause.
When the company was established, it was agreed that when the shareholders of the company were dismissed before retirement, they must transfer their shares to other shareholders, which is the "delisting clause" in law. Recently, the People's Court of Jingkou District, Zhenjiang City, Jiangsu Province concluded an equity dispute case caused by the delisting clause, and the defendant Liu Wenbin was sentenced to transfer the company's equity to Zhao Yuqiang in the first instance according to law; Zhao Yuqiang paid Liu Wenbin's equity transfer amount of RMB 654.38+0.4 million and interest at the same time when accepting the above equity; Within three days after the above-mentioned equity transfer, the company shall make corresponding changes to the register of shareholders and the certificate of capital contribution; The third party, Xie Yongchao, shall assist in the above equity transfer.
From June 5438 to 10, 2005, the management and middle-level cadres of a chemical group company in Zhenjiang City, Jiangsu Province jointly invested to set up an investment limited company, which was the shareholder of the chemical group. Liu Wenbin, manager of the branch of Chemical Industry Group, contributed RMB 1 15438 in the name of registered shareholder Xie Yongchao of the investment company on October 5, 2005. According to the investment agreement and the company's articles of association, when a shareholder is dismissed from the post of middle-level cadre of the chemical group before retirement, he must transfer his equity to the main operator of the chemical group. The transfer price within five years is the capital contribution plus the interest on bank deposits during the same period. In August 2006, Chemical Group dismissed the manager of Liu Wenbin Branch. Zhao Yuqiang, chairman of Chemical Industry Group, asked Liu Wenbin to transfer his equity to himself, but Liu Wenbin refused, so Zhao Yuqiang took Liu Wenbin to court.
After hearing the case, the court made the above judgment according to law.
Case playback
The dissolution of shareholders leads to equity disputes.
Zhao Yuqiang is the chairman and general manager of a chemical group company in Zhenjiang City, Jiangsu Province, and is the legal representative of the company. June 5438+October 2005 10, in order to increase capital and share, Chemical Industry Group decided to set up an investment company, which was formed by the management and middle-level cadres of Chemical Industry Group. On June 16 of the same month, the investment company issued the Agreement between Shareholders and Investment, which stipulated in the equity transfer part of the investment agreement that shareholders must transfer their shares when they are dismissed from the position of middle-level cadres of the chemical group before retirement; The transfer object is the main operator of the chemical group.
On that day, 22 registered shareholders, including Zhao Yuqiang and Xie Yongchao, signed a capital contribution agreement. In the list of "Investment Representative (Registered Shareholder) Xie Yongchao" attached to the investment agreement, it is indicated that "the investment contributed by the entrusted investor Liu Wenbin is RMB 6,543,800+RMB 4,000", and Liu Wenbin signs the corresponding position in the attachment. Liu Wenbin is the manager of a subsidiary of Chemical Industry Group.
On June 5438+065438+1October 14, 2005, the shareholders of the company signed the Articles of Association, which made the same agreement on the equity transfer as the Shareholders' Contribution Agreement. According to the Articles of Association and the investment agreement, Liu Wenbin invested RMB 65,438 yuan+RMB 400,000 yuan the next day. On 2 1 of the same month, an investment company was established through industrial and commercial registration, with 22 shareholders including Zhao Yuqiang and Xie Yongchao. After the investment company became a shareholder of the chemical group.
On August 18, 2006, Liu Wenbin was dismissed by Chemical Industry Group. In June+February, 2007, Xie Yongchao and Zhao Yuqiang signed an equity transfer agreement on the equity under Xie Yongchao's name, including the initial contribution of RMB 340,000.00 Yuan by Liu Wenbin, according to the Articles of Association and the shareholders' contribution agreement. When Zhao Yuqiang and Xie Yongchao asked Liu Wenbin to sign for confirmation, Liu Wenbin learned that he had transferred his equity without his consent and refused to sign. Without Liu Wenbin's signature, the equity cannot be actually transferred. Zhao Yuqiang and Xie Yongchao believe that the transfer agreement between them is completely carried out in accordance with the articles of association and the shareholders' investment agreement. After many unsuccessful negotiations with Liu Wenbin, Zhao Yuqiang came to the court on March 6 this year, and took Liu Wenbin as the defendant, Xie Yongchao and the investment company as the third party, and filed an equity transfer lawsuit with the court.
The judge's statement
The delisting clause is valid without violating goodwill.
The expulsion clause refers to the expulsion of shareholders, or the expulsion of shareholders. In essence, it is an act of forcibly transferring all shareholders' shares, forcing shareholders to quit the company, thus canceling shareholders' qualifications. Because its content is mandatory, it is often accused of violating the voluntary principle in the law, so it is considered to be in violation of the provisions of the law and is an invalid clause. During the trial, Zhao Yuqiang, the plaintiff, believed that the delisting clause was in line with the principle of voluntariness, and the content did not violate the mandatory provisions of the current Company Law. This is an effective clause, which can be regarded as a condition of the civil act of equity transfer. Defendant Liu Wenbin believes that the agreement on delisting clause is essentially a compulsory transfer of equity, which violates the principle of freedom of equity transfer and should be invalid.
The judge who heard the case said that the limited company is a human being and is closed. For the needs of the company's development and security, there are naturally special requirements for the company's shareholders. The appearance of delisting clause is to meet this demand. Under the premise of not violating the principle of good faith, the law does not deny the validity of the delisting clause. The main purpose of the establishment of the investment company is to become an investor in the chemical industry group and successfully realize the capital increase and share expansion of the chemical industry group. In the investment agreement and articles of association, it is clearly stipulated that the shareholders of the investment company are only the management and middle-level cadres of the chemical group, and it is further stipulated that "when the shareholders dismiss the middle-level cadres of the chemical group before retirement, they must transfer their shares to the main operators of the chemical group". The agreement conforms to the characteristics of humanity and closeness of the limited company and does not violate the principle of good faith. This is a valid clause. As far as the shareholders of the investment company are concerned, Liu Wenbin has signed the investment agreement, and the actual capital contribution is in place, so he is a shareholder of the third-party investment company. Liu Wenbin enjoys rights and performs obligations in accordance with the investment agreement and articles of association. The delisting clauses in the investment agreement and the articles of association are legal and valid.
At the same time, the judge said that although equity transfer price was not involved in the company's articles of association, there were provisions in the investment agreement that equity transfer was something that the company might encounter during its existence, so the equity transfer price stipulated in the investment agreement could be applied to equity transfer between promoters or original shareholders. (The names in the text are all pseudonyms)