• 发表时间:2018-12-10
  • 作者:公司法律师许光
  • 来源:南京公司律师
  For a company,the position of the general manager is very important.The general manager is responsible for the daily operations of a company as well as enforcement of important decisions of board of directors or the shareholders’meeting.The general manager is to be vested a large scope of powers to oversee the operation of the company,including having access to top secrets of the company,deciding the employment and assessment of employees of the company and enacting and enforcing corporate budgets.If a general manager embezzles the funds,involves in corruption or abuses his power for personal interest,v it might cause great harms to the company.Therefore,the powers to appoint or dismiss a general manager is one of the essential powers with respect to a company.When the founders of a start-up are not aware of such an issue,they might easily fail to seize this power and then subsequently lose control of the corporate affairs.
  Zhang and friends set up a start-up“Star Plan”,while he holds 51%of total shares and other founders hold the remaining 49%.Mao was appointed as the general manager of the company,whose nomination was approved by all founder unanimously.At the beginning,Mao worked very hard to improve the performance of the company,making the shareholders rather pleased.However,when time went by,Zhang found that Mao became more and more reluctant to enforce the decisions made by the shareholders’meeting and board of directors.He then entrusted an investigation agency to investigation what was going on with Mao,and to his surprise,Mao registered another company and transferred a large proportion of the Star Plan’s technology,funds and employees into the latter company.The new company has been a competitive one in the same area to take away a large proportion of stakes of market from what originally belonged to Star Plan.
  Zhang immediately summoned an interim shareholders’meeting,intended to dismiss the general manager.Corporate Law has defined appointment and dismissal of the general manager as one of significant issues of the company,and then requires no less than 2/3 of total voting rights to pass a relevant proposal.Although another friend supported Zhang’s proposal in the meeting,he only had 66%of shares supporting him,while 2/3 represents roughly 67.67%.Because the rules stipulating the minimum proportion of voting rights required to pass relevant resolution fall into the category of mandatory rules governing corporate affairs,he let it just slip away.
  In Nanjing Corporate Lawyer’s counseling service for the clients,we always find such a situation that shareholders,especially the controlling shareholder don’t have the perception of setting rules to take charge of appointment of key management of company.If they can perceive such issues earlier and consult the legal professionals,we can recommend many mechanisms to solve this problem.For example,we can set the controlling shareholder’s share at the proportion of more than 67.67%.If the funds he contributed does not satisfy such proportion,we can make special agreements and record in articles of association that he holds shares as agreed proportion,not directly correlated to the funds he contributed;or we can make agreements that the voting rights are not directly correlated to share proportions,and we can distribute the voting rights through consensus.The basic principle is that you should have controlling voting right of equivalent or more than 2/3.If due to different factors the mechanisms mentioned above can’t be completed,the controlling shareholder can also sign a agreement of persons acting in concert with other shareholders,stipulating that other shareholder must cast votes of same opinion with you in the shareholders’meeting,and if they reverse to do so,their votes shall be deemed as the same with the controlling shareholder’s vote when calculating the votes,thus creating a concerted proportion of voting rights,when you have signed such agreement with people whose shares plus your own shares exceed 2/3 of total shares,you will be essentially in charge of appointment and dismissal of key management.