On the TOTAI real estate company

Legal opinion equity allocation dispute handling (pre litigation)

A,     Background and overview

(a)        Related subject

1,   TOTAI company

2,   DATO shares of the company

3,   KUKUN Group Ltd.

4,   Choi

5,   TAISHAN real estate company

Two.        Summary of background data

1, 2005, DATO company, KUKUN group, Choi jointly funded the establishment of "TOTAI company", as a platform for real estate development. Among them, chase shareholding "Tongtai company" more than 70% proportion of the shares, as the "Tongtai company" absolute controlling shareholders and the actual control of management "Tongtai company".

2, 2005, Tongtai company as a real estate development enterprise, and set up single subsidiary project "Taishan real estate company", obtained the relevant land and real estate development project.

In 2005 3, -2007 years, in addition to the registered capital of the necessary funds, item company is "Taishan real estate company" sources of funding Tongtai from its parent company "company", and "a lot of money Tongtai company" also originates from the shareholder loans.

4, 2010-2011 years, "Taishan real estate company" due to poor management, has been declared bankruptcy and liquidation of the court. And "Tongtai property" companies as shareholders borrowers (common CIS creditors) also claims.

5, 2012 "Taishan real estate company" by assets cash auction, sinking after the distribution, has the distribution of claims 94000000 yuan to Tongtai company account. Expected to have 4000 yuan credit allocation will be in place.

6, 2012, "the three shareholders Tongtai company", namely the chase shares, Crown Holdings, Choi "Tongtai company" has been achieved through judicial way assignment of accounts receivable (i.e. has to account for $94000000 and is expected to 40000000 yuan in place), distributed disposal. Between large shareholders and small shareholders, in respect of the rights and interests of the distribution, there is a controversy. Specifically the following.

 

Three.        The main controversy

In 2012 June, Winton convening a meeting of the shareholders, the decision has been recovered on Tongtai company creditor's rights are allocated disposal.

Allocation scheme proposed is the major shareholder:

1.  Withdrawn funds, repayment of the loan principal plus interest, then.

2.  The repayment of the interest rate according to the previous borrowing the resolutions of the shareholders' meeting, and the calculation of interest did not stop time, according to the actual loan interest calculation time of occurrence.

3.  Large shareholders plan by the end of May 31, 2012, 101980000 yuan loan principal, interest is 44732700 yuan. 40000000 yuan and later the received interest in 94000000, basically will be able to repay the principal and interest repayment, the vast majority of.

 

Spherical and Choi and other small shareholders the main objection to repay the interest, the main reason is that:

1.  The main borrowing are lending by large stockholder's company and Associate Company, mainly have five, respectively 30000000, 34000000, 22700000, 1600000, and 6000000 (chase Associate Company lent).

2.  The first: 3000 million, in 2005, a resolution of the shareholders, small shareholders agree, interest rate is the rate of 10%. However, for small shareholders interest did not stop time objection. Qrunning group put forward: allocation in January 19, 2012 to Tongtai company account, should not have been calculated to chase company think real payment date (the project is tentatively scheduled for May 31, 2012).

3.  Second: 34000000 in 2006, a resolution of the shareholders meeting, but the small shareholders against the borrower, the resolutions of the shareholders' meeting only the absolutely controlling shareholder's company chop. Datong company think: in accordance with resolution of interest at the rate of 10%, and the calculation to the actual repayment. Therefore, the spherical cap group: for the loan, without the consent of the other shareholders, the interest rate is also high shares of Dongdan set, the interest rate, plus 6 years of time, if in accordance with its unilateral resolution rate, so the dilution of rights and interests of minority shareholders, large shareholders can take away all the distribution of Tongtai company the capital account.

4.  Third: 22700000 in 2007, a resolution of the shareholders, small shareholders and large shareholders and small shareholders have agreed, in accordance with its equity ratio to Tongtai company funds more than 700 yuan. The resolution of the shareholders' meeting shall rates for bank lending rates over the same period. Crown Holdings, since according to the proportion of loans, this part of the money of all shareholder interest free. Company agrees to chase. Therefore, this part of the loan are not interest bearing.

5.  Fourth strokes: 1600000. Also in 2007, the resolution of the shareholders' meeting, small shareholders and large shareholders and small shareholders have agreed, in accordance with the spherical cap group equity ratio to Tongtai company 380000 Yuan of funds. Another small shareholders Cui national not borrowing. The resolution of the shareholders' meeting shall rates for bank lending rates over the same period. However, there are still 1000000 yuan in accordance with the 10% interest rate loan signing chase stock company and Tongtai company loan agreement, the rest is in accordance with the bank loan interest rates over the same period. Crown Holdings, since according to the proportion of loans, this part of the money of all shareholder interest free. Not explicitly agreed chase Co. ltd..

6.  Fifth strokes: 6000000 yuan. The money without any resolution of the shareholders, other shareholders didn't even know. The edge of the road, but the major shareholders of Associate Company's stock company loan interest rate is at 10% interest, in accordance with the. Qrunning group and other small shareholders do not agree.

7.  To sum up, according to the views of the spherical cap companies, 101980000 yuan loan principal, interest shareholders Association borrowing and eliminate without a resolution of the shareholders' meeting, the actual interest shall be 18400000 yuan. Therefore, at present Tongtai company 94000000 +4000 million equity allocation, the repayment of principal and interest, the balance of nearly 20000000 yuan of funds can be distributed to the shareholders in proportion.

 

     Therefore, the focus of the dispute is: large shareholder chase joint-stock companies, and small shareholders qrunning group and Choi, is how to calculate the controversial related shareholder loan interest, which is directly related to the interests of shareholders' equity allocation.

Crown Holdings that major shareholders use their control advantages, unauthorized borrowing and setting interest rates, to some extent diluted the interests of small shareholders, that Winton equity allocation on small shareholders cannot be assigned.

The major shareholder of the company's shares the view that should get their own interest, the company has absolute control right has a right to decide to set interest rates. As for whether exempt interest, because chase Co. Ltd. is "listing Corporation", anyone not exempt interest.

 

Two,     Treatment suggestions

(a)        The basic purpose and idea

1, the basic objective

By the court that way (the third party ruling), to solve the dispute. If the court finds that the interest is calculated, how to calculate, then the DATO shares of the company are respect. Therefore, the shareholders want to solve the dispute by way of judicial proceedings.

2, thinking

In view of the above, we will examine the company shareholder dispute from the point of view, see whether can through the judicial way to achieve this goal.

Datong company only need a letter issued by the Winton, notification to each of the shareholders of its distribution. And we think, should be through the Tongtai company to "the resolution of the shareholders' meeting", make the treatment schemes for the distribution of rights and interests of the shareholders of the company, and still chase as large shareholders seal. According to the company law and the articles of association of the small shareholders, proposed revocation or invalid on "the resolutions of the shareholders' meeting".

 

Two.        About the case and case

1, may be involved in the cause and elimination

This case mainly involves the company disputes, through the discussion of "action plan exclusion method".

According to the "Regulations" in the dispute about the kind of company[1],

1.            Company earnings distribution disputes: exclusion. Reason: Tongtai company may itself does not have a surplus, and judicial proceedings need financial audit, time is long, and New problems crop up unexpectedly. simple objective but not to the shareholders of the.

2.            Shareholders' right to dispute: exclusion. Reason: facts and objective are not applicable.

3.            To damage the interests of shareholders liability disputes: exclusion. Reason: the big shareholders has not actually get money, did not cause substantial damage to the small shareholder.

4.            The interests of the company: to exclude liability disputes damage. Reason: to solve the distribution of interests between shareholders have no direct help.

5.            Dispute liability company affiliated transactions harm: exclusion. Reason: the recognition of related party transactions and the difficulty of identification, and the distribution of interests between shareholders have no direct help.

6.            Company decisions disputes: this before the big shareholders to borrowing decisions of shareholders the right to withdraw the resolution. -- exclusion. Reason: has more than 22 article of company law 60, aging, and the general procedure for 1 years the right to revoke the aging.

7.            Company decisions disputes: the equity allocation scheme new resolution was revoked or declared invalid. --Feasible. Reason: has the basis, also has the basis of substantive law. The Winton Company re to convene a meeting of shareholders, and stamped by the large shareholders to make a resolution of the shareholders' meeting, the main contents of the equity allocation scheme, involves the calculation of interest rate basis, computation time basis. By small shareholders file a lawsuit, the resolution of the shareholders' meeting for the revocation or confirm the validity of the contents of the resolution, the court of review, identification, indirect calculation of interest have no basis, whether it is reasonable to make identification, to solve the dispute between shareholders.

 

2, the case of the entity legal basis

1.            Case: "the case" 250th regulations twenty-first categories of corporate disputes in a company decisions disputes. As for the resolution of disputes is the confirmation (confirmed invalid), revocation or company disputes, will be determined according to the entity legal basis.

2.            The entity legal basis

    "Company law" article twenty-second of shareholders or the general meeting of shareholders, the board of directors of the contents of the resolutionIn violation of laws, administrative rules and regulationsInvalid.

　The shareholders' meeting or the general meeting of shareholders, board of directors meeting convening, voting in violation of laws, administrative regulations or the articles of association of the company, orThe resolution is in violation of the articles of association of the companyThe shareholders may, within sixty days from the date of the resolution is made, request the people's court to revoke.

 

Three.        The entity question pre demonstration

1, the first level: revocation or invalid

1.            The revocation of the resolution -- need to see whether or not in violation of the articles of association of the company, and puts forward 60 days at the date of making the resolution. (we also did not check the articles of association, but if the Constitution without regulation, the related shareholder loan then cancel lawsuit ideas not feasible); although, but also from the shareholders meeting program unconstitutional angle, proposed revocation proceedings, but not up to shareholders to shareholders, because the hope that through the court review the content of the resolution the calculation of interest, especially the legitimacy, rationality.

2.            Invalid affirmation litigation -- need to see whether the contents of the resolution in violation of laws, administrative rules and regulations. (this train of thought should be more feasible, no time limit, strict but need to find content that violates substantive law content)

2, the second level: if it is confirmed invalid, then the content of the resolution in the calculation of interest and other content, provisions on the need to review whether or not in violation of laws, administrative regulations.

3, the third level: interest have no basis, interest bearing time content violates the rules of substantive law.

1.  In the controlling shareholder's control, to borrow or borrowing to substance of fund transfer to related parties, is also one of the shareholders behavior. In our current legal framework, non-financial corporate lending between was identified as illegal financial management regulations, companies (enterprises) and the company (enterprise) between the loan contract invalid. (of the case before trial, but the recent trend is not absolute)

2.  Related shareholder loans, without a resolution of the shareholders' meeting agreed, whether in the light of article is the provisions of Article 16, article twentieth[2].

3.  About the shareholder loan, the interests of transportation related laws and regulations dilution small shareholder rights (to be)

    

According to the existing data and information, the above observations, we propose the new issued by a resolution of the shareholders' meeting, determine the equity allocation scheme, calculation of interest and on the basis of content involved in. We intend to confirm the resolution invalid case by case, small shareholder Zhejiang qrunning Group Co Ltd sued Ningbo Tongtai real estate company, reason is the provisions of resolution in violation of the law, administrative regulations, and the content of the resolution by the court whether illegal facts and laws are applicable to the middle, resolve such dispute between shareholders.

                                       Zhejiang Haitai law firm

                                           Wu HuilinPartner lawyer

                                            In 2012 06 months 14 days

 

Attached:

(a) to provide complementary information list before litigation

1,        Tongtai company's articles of association, chase the company's charter.

2,        Resolution on borrowing shareholders (05, 06, 07 years), and the corresponding loan agreement, promissory note.

3,        Winton recent financial statements.

4,        Tongtai company claims data, distribution of data, the fund to the account certificate (including data bankruptcy court ruled Taishan, etc.).

5,        Business basic information Tongtai company.

 

The resolution of the shareholders' meeting (two) samples:

1, the main content: the concrete scheme about rights processing

2, the big shareholder vote

3, the specific content of samples

 

Ningbo Tongtai Real Estate Co., Ltd.

Resolution 2012 interim meeting of shareholders

According to the company law and the articles of association of the company, specially convened shareholders meeting and formed the resolution in 2012 * * month *:

In view of the subsidiary company, Ningbo Taishan Real Estate Co., Ltd. (hereinafter referred to as the "Taishan company") loan debt has been through the courts to declare and distribution in place some of the money. According to the shareholders of the company will be on the resolution of the shareholder loans and loan contract agreement, the company decided to deal with the Taishan company claims distribution companies in full in place within three working days of a one-time shareholder loan principal and complete settlement. The following specific allocation principle:

(a)   The allocation of funds involved in debt, according to the repayment of principal and interest payments, the principle of.

Two.   In May 18, 2007 the shareholders of Ningbo Datong Development Limited by Share Ltd, Zhejiang qrunning Group Co. Ltd. and Cui Guomin three shareholder lend to the company 30000000 yuan loan without interest.

Three.   The remaining shareholders loans according to the loan contract interest rate to shareholder loans to date, no loan contract in accordance with the resolutions of the shareholders' meeting to determine the interest rate.

Four.   As of May 31, 2012, the shareholder loans total 146712700 yuan, of which the principal is 101980000 yuan, the interest is 44732700 yuan.

Five.   Each shareholder loan interest type and amount, see table.

The resolution of the shareholders' meeting or other matters.

Shareholders signature:

 

Ningbo Datong Development Limited by Share Ltd         Zhejiang qrunning Group Co., Ltd.    Cui Guomin