The subsidiary that had been bought for 6 years suddenly said it was out of control! what’s going on? _ Oriental Fortune Network

In June 2015,Hengbao shares(002104) Acquired 51% of Shenzhen Yikayi Technology Co., Ltd. (hereinafter referred to as “Yikayi”) with 153 million yuan in cash and became its holdingshareholder. However, in the evening of March 31, 2021,Hengbao sharesreleaseannouncementAccording to the statement, Yikayi is prone to management abnormalities, and the company has been unable to control Yikayi’s financial and operating decisions, and it has lost control of Yikayi.

On the first day of 2022, General Manager Yu Tingjin of Yika Yiyuan, a subsidiary of Hengbao’s “out of control” subsidiary, revealed to reporters on the phone that on May 17, 2021,Hengbao sharesInitiated an “Application for Arbitration” to the Shanghai Arbitration Commission on the grounds that “Yicard loses control and cannot financially consolidate”, and proposed to dissolve the “Share Transfer Agreement” signed in May 2015 between Hengbao Shares and Yicardi and other respondents. And the arbitration application of the supplementary agreement.

Shenzhen Yikayi Technology Co., Ltd. (430671) was listed on the National SME Share Transfer System in April 2014.According to the company’s “Second ProvisionalGeneral meeting of shareholdersAnnouncement of Resolutions, starting from April 20, 2021, the director of the company Yu Jinjin was removed from his position.

Yu Tingjin told reporters that the Shanghai Arbitration Commission recently issued a notice stating that it decided to extend the trial period of this case to January 26, 2022 due to the needs of the trial. The reporter was also informed that the arbitration has opened on August 31, 2021 and is currently in the stage of awaiting ruling.

In this regard, Sister Chen, the secretary of the board of Hengbao shares, acceptedSecuritiesThe Times reporter said in an interview that the issue of a card that is easy to lose control has been disclosed in the company’s previous 2020 annual report and inquiries from the Shenzhen Stock Exchange, as well as in the 2021 semi-annual report. Regarding the arbitration, she said that after the final arbitration result comes out, the company will continue to disclose it.

Is it reasonable to seek “regret medicine”?

In recent years, the strange phenomenon of A-share listed companies losing control of their holding subsidiaries has been frequently staged.

Regarding Hengbao’s proposal to terminate the “Share Transfer Agreement”, Yu Tingjin, general manager of Yika Yiyuan, a subsidiary of Hengbao Holding, said that the transfer of shares in the capital market has beengameRules, in order to prevent the purpose of the acquisition from failing, it is usually possible to add a profit betting clause in the acquisition agreement-for example, if the acquired party cannot achieve the target, it is required to pass a second transactionRepurchaseShares or compensation to the purchaser.

The official website of One Card Company disclosed the “Explanation on the Significant Arbitration between One Card Shareholder Hengbao Shares and Other Shareholders Involving 166 Million RMB.” According to the article, the arbitration claimant Hengbao shares believes that since February 2021, the first, second, third, and fourth respondent have repeatedly violated the provisions of the “Share Transfer Agreement” and prevented the claimant from exercising the controlling shareholder rights and excluded The applicant’s legal supervision of One-Card Easy even does not allow the applicant’s staff to enter One-Card Easy, causing the applicant to lose control over One-Card Easy.PerformanceCannot be consolidated,contractThe purpose was completely defeated.

In this regard, Yu Jinjin believes that for the transfer of shares without gambling clauses or performance commitments, as the name suggests, the purpose of the contract is “one party transfers the shares, and the other party pays for the share transfer.” So, going backward from the corporate governance a few years later and exploring the original “contract purpose” is obviously an act of inverting causality. The share transfer money reflects the market value or price of the shares, and does not include (or imply) the meaning that small shareholders should agree to all decisions and decisions of large shareholders. In other words, as long as there is no fraud, coercion, apparent unfairness, and major misunderstanding of the share transfer agreement, there is no violation of the mandatory provisions of the law, and there is no agreed reason for cancellation, then it cannot be cancelled at will.

“Out of control” or “not out of control”?

On March 31, 2021, Hengbao issued the “Announcement on Loss of Control of Shenzhen Yikayi Technology Co., Ltd.”, announcing the fact that the control was out of control; on April 20, the official website of Yikayi issued the “Clarification: Hengbao” Baosteel did not lose control of Shenzhen Yikayi Technology Co., Ltd.” article.

The Hengbao Stock Announcement at that time showed that due to the abnormal management situation of Yikayi, in order to strengthen Yikayi’s management and control, the company sent a work group with Yikayi’s chairman, chief financial officer and legal representative as its main members. Entered in Yikayi, but due to the interference of the original management team such as Yikayi shareholder Yu Jinjin, the management and control work was hindered; the company appointed financial personnel was dismissed for no reason by Yu Jinjin; the official seal, financial seal and contract seal of Yikayi and its subsidiaries The seals and licenses such as business licenses, etc. are all actually controlled by the Yikayiyuan management team; the Yikayiyuan management team arbitrarily changed the method of collection of receivables, and forcibly controlled the financial and operating decisions of Yikayi and its subsidiaries. In view of the above facts, the company has been unable to control Yikayi’s financial and operating decisions, and cannot normally exercise shareholder rights and effectively exercise control. The company has lost control of Yikayi.

Hengbao shares also stated that as of the company’s 2019 audit,Financial Statements, Yikayi has a small contribution to the profits of listed companies, and has little impact on listed companies. The main business of Yikayi is relatively lowly related to the existing main business of the listed company, and has little impact on the main business of the listed company.

Yikayi stated that, according to the “Shenzhen Yikayi Technology Co., Ltd.’s Reply to the Inquiry Letter to the National Small and Medium-sized Enterprise Share Transfer System Co., Ltd.” disclosed by the share transfer system on April 19, 2021, Yikayi does not recognize Heng Bao shares lost control of the company.The reasons include that the official seals, financial seals, contract seals, business licenses and other seals and licenses of Yikayi and its subsidiaries are kept in the company and used normally; Hengbao shares control the Ukey of Yikayi online banking and review Ukey, and controlcurrencyThe capital exceeds 100 million yuan; Hengbao shares can exercise shareholder rights through the board of directors and the board of supervisors; the current company’s financial officer is still Huang Honghua designated by Hengbao shares; the current chairman and legal representative of the company is still Huang Honghua designated by Hengbao shares.

In addition, one card easy hostingBrokeragePacific OceanSecuritiesNo. 2021-027 disclosed in the share transfer system on April 19, 2021Pacific OceanSecuritiesCo., Ltd.’s Reply to the Inquiry Letter of Shenzhen Yikayi Technology Co., Ltd.” The reply letter stated: “After verification, Hengbao Holdings holds 51.1020% of the listed company’s shares, which is a holding company that holds more than 50% of the listed company’s shares. Shareholders, in accordance with the “Company Law” and the current and effective “Articles of Association” of listed companies, the general meeting of shareholders shall make meeting resolutions. Ordinary resolutions need to be reviewed and approved by more than half of the voting rights held by shareholders attending the meeting, and special resolutions need to be approved by shareholders attending the meeting. Two-thirds or more of the voting rights held by Hengbao shares can determine the selection of more than half of the company’s board of directors through actual control of the voting rights of the listed company’s shares. The voting rights of the listed company’s shares at their actual disposal are sufficient to have a significant impact on the resolutions of the company’s general meeting of shareholders. In summary, the actual controller of the listed company has not changed, and the actual controller is still Qian Jing.”

Yu Tingjin told reporters that Hengbao shares are currently able to control the shareholders meeting, board of directors and board of supervisors of Yikayi Company, and can exercise the rights of controlling shareholders and have a significant impact on the company. The legal representative, chairman, general manager, and secretary of the board of directors The chairman of the board of supervisors and the chief financial officer are both appointed by Hengbao, and nearly 100 million yuan of funds are controlled by Hengbao.

In addition, a person familiar with the situation who did not want to be named told reporters that in early 2021, Yikayi and Hengbao had discussed the issue of adjusting the proportion of shares or repurchasing all the shares, but it is said that it was not finally done.

The person said that in most domestic acquisitions of listed companies, the controlling shareholder generally does not hand over the daily operation and management rights of the subsidiary to the original team, but Hengbao agreed in the agreement that “the original management team is still responsible for the daily operation.” . So roughly speaking, the relationship between the two parties in the first few years can be regarded as very harmonious.

Legal person: Regulators attach great importance to the phenomenon of “out of control”

Previously, several lawyers such as Fu Changyu and Yi Xiangming from Beijing Zhonglun Law Firm stated that various stories always occurred at the time when listed companies disclosed their annual reports.

The article believes that the equity of subsidiaries with controlling relationships held by listed companies is generally included in the financial report “Long-term equity“Investment” subjects are important assets of listed companies. Such subsidiaries are “out of control” and listedCompany investmentEarnings may fall short, assets may be damaged, financial statements need to be adjusted, and even annual reports may not be disclosed on time, and even business sustainability may cause serious problems. Regulators attach great importance to it.

“Regulators are mainly concerned about whether the reasons for determining the’out of control’ are sufficient, whether the information disclosure is true, what response measures were taken before and after the out of control, whether the directors, supervisors, and intermediary agencies are diligent and conscientious in the process of’out of control’, etc.” Fu Changyu said.

The article pointed out that “control” and “out of control” are not clear legal concepts, and neither the “Company Law” nor the “Securities Law” give clear definitions. However, under the “Company Law”, based on the definition of “controlling shareholder” and “actual controller”, the basic line of “control” can be delineated. According to Article 216 of the “Company Law”, “controlling shareholder” refers to: (1) holding more than 50% of the shares; or (2) although the shareholding ratio is less than 50%, the voting rights they enjoy are sufficient for the shareholders meeting and shareholders The resolutions of the General Assembly had a major impact. The “actual controller” refers to a non-shareholder who can actually control the behavior of the company through investment relationships, agreements or other arrangements.

The article concluded that the “Measures for the Administration of the Acquisition of Listed Companies” and the Securities and Futures Law Application Opinion No. 1 (China Securities Regulatory Commission[2007]Although the relevant regulations of No. 15 are mainly aimed at the determination of the “control” of listed companies, based on the consistency of the regulatory system, it can be used as an important reference for judging whether a subsidiary is “out of control”.