跟别人合伙做生意哈,一定要签署一个东西叫股东协议,今天呢，王律师就用一个实战版的股东协议原文,带你亲身的去领略一下,什么条款是必须要存在的,什么条款是必须要约定、必须要争取的,股东协议必须要有的六大机制,哪六大机制,进入机制、退出机制、分工机制、分红机制、规则机制,以及未来展望机制,我们来一一讲解一下。

　　When doing business with others, it is necessary to sign something called a shareholder agreement. Today, Lawyer Wang will use a practical version of the original shareholder agreement to take you to experience firsthand what terms must exist, what terms must be agreed upon and contested, the six mechanisms that must be included in the shareholder agreement, which six mechanisms are the entry mechanism, exit mechanism, division of labor mechanism, dividend mechanism, rule mechanism, and future outlook mechanism. Let's explain them one by one.

　　首先，股东协议啊,他是有一个身份设定的,两个股东一起合伙做生意,甲呢，是公司的大股东,掌握公司60%的股权,掌握公司的董事职位和监事职位,乙呢，是公司的小股东,持股40%,同时是公司的经理身份,那么在这种身份设定下,我们一起来看一下他们的进入机制要怎么约定,进入机制呢,又分为三个板块的内容,我第一是注册资本金顶多少,你的注册资本金是你股东能够承担的债务责任啊,注册资本金不是越大越好,如果你的投入的资金是1000万的话,那注册资本金王律师一般建议你在100万上下,那就在这里写上是100万,然后我们再说持股比例,进入机制里面,进入的时候股东要讲好,大家持有多少的股权呀,持有多少的股权,是你工商登记的股权吗,这个太简单了,这个属于你公司章程里面约定的内容,那么还有一些股权是没有办法显示,在公司章程里面的内容,比如说预留股,比如说代持股,你这个项目如果要运营起来,你有一个很好的渠道资源,你要给渠道资源10%的股权,他又不能写明,所以在哪里写呢,在股东协议里面写,把这件事情写清楚,这个10%是另外一个第三方的,然后进入机制要写清楚的是什么,是出资方式,比如说甲是用货币出资的,乙是用知识产权出资的,那我们就要写清楚乙的这个知识产权是什么,不能写在明面上的出资方式,举个例子哈,项目如果要运营的话,假设某一个大佬在我们的工商上持股一个5%,或者一个10%,他不用出钱,但是只要有他的名字,在我们后面谈业务都会非常好谈,那约定在哪里呢,就约定在我们的进入机制这个条款里。

　　Firstly, the shareholder agreement has an identity setting where two shareholders work together to do business. A is the major shareholder of the company, holding 60% of the company's equity and holding the positions of director and supervisor. B is the minority shareholder, holding 40% of the company's shares, and also serving as the company's manager. Under this identity setting, let's take a look at how their entry mechanism should be agreed upon. The entry mechanism is divided into three sections. The first one is the maximum registered capital, which is the debt responsibility that your shareholders can bear. The larger the registered capital, the better. If your invested capital is 10 million, then the registered capital is generally the same as that of Lawyer Wang. I suggest you put it around 1 million, so write it here as 1 million, and then we can talk about the shareholding ratio. When entering the mechanism, shareholders should explain it well, How much equity do you hold? How much equity do you hold? Is it registered with your business registration? This is too simple. It belongs to the content stipulated in your company's articles of association. However, there are still some equity that cannot be displayed. The content in the company's articles of association, such as reserved shares and proxy shares, if you want to operate your project, you have a good channel resource. You need to give the channel resource 10% equity, which cannot be specified. So where should it be written? Write it clearly in the shareholder agreement. This 10% is another third-party, and then enter the mechanism to clearly state what the contribution method is. For example, A will contribute in currency, and B will contribute. It is invested with intellectual property rights, so we need to clearly state what the intellectual property rights of Party B are, and not explicitly state the method of investment. For example, If the project is to be operated, let's assume that a big shot holds a 5% or 10% stake in our business. He doesn't have to pay, but as long as he has his name, it will be very easy to discuss business with us later. So where is the agreement? It's agreed in our entry mechanism clause.

　　我们讲完了进入机制,我们再顺着看一下规则机制哈,两个人合伙,那首先各自的权利义务是要讲清楚的,股东的权利有哪些特殊约定的呢,除了公司法上、公司章程上约定的以外,还有一些权利是要在股东协议里面写清楚的,比如说这个查阅复制权,如果你们的公司章程用的是工商版本的话,那查阅复制权的规定和公司法是完全一致的,也就是说,当你想查公司的会计账簿和会计凭证的时候,你就只能向公司发送请求公司,如果我觉得你请求的这个理由合法合理,公司可以配合你查阅,公司如果觉得你不合理,有权拒绝查阅,拒绝查阅的情况下呢,那你只能向法院请求查阅,但是如果你们在公司成立之初,就签订好了股东协议,并且股东协议里面写清楚了,我的查阅复制权怎么行使,我是有权直接查阅,我不用向公司说明理由,我不用向公司公司说明目的,公司没有权利拒绝其他股东,是不是要完全的配合你做这件事呢,这个查阅复制权是要写进股东协议里面的。

　　After we have finished discussing the entry mechanism, let's take a look at the rules and mechanisms. When two people form a partnership, their respective rights and obligations need to be clearly explained. What are the special provisions regarding the rights of shareholders? In addition to those stipulated in the company law and articles of association, there are also some rights that need to be clearly stated in the shareholder agreement, such as the right to access and copy. If your company's articles of association use the industrial and commercial version, the regulations on access and copy rights are completely consistent with the company law. That is to say, when you want to access the company's accounting books and accounting certificates, you can only send a request to the company. If I think the reason you request is legal and reasonable, the company can cooperate with you to access them. If the company thinks that... If you are unreasonable and have the right to refuse access, then you can only request access from the court, But if you have already signed a shareholder agreement at the beginning of the company's establishment, and it is clearly stated in the shareholder agreement how to exercise my right of inspection and copying, I have the right to directly inspect without explaining the reason or purpose to the company. The company does not have the right to refuse other shareholders. Should you fully cooperate with you in doing this? This right of inspection and copying should be included in the shareholder agreement.

　　我们说完了权利再说义务,王律师给大家列了很多条一下,这个第九项可以重点关注一下,公司章程和公司法,是没有限制股东,同时投两个同类型业务公司的,但是实践操作当中呢,其实这样会严重损害到某一个公司,如果你要去追究他的泄密责任的话,那么你的举证责任就会非常的重,这时候我们为了规避这种风险,我们可以在公司成立之初,股东协议里面就约定清楚,股东具有不竞争义务,股东的不竞争义务是在什么时间履行的呢,持有公司股权期间,以及他把公司的持股全部转让后,两年内一直要遵守这个不竞争义务,有人说可不可以突破两年的限制,王律师建议最好是两年内,但是你要硬要突破的话,法律上也没有禁止性的规定。

　　After discussing the rights, let's talk about the obligations. Lawyer Wang has listed many points for everyone. The ninth item can be focused on. The company's articles of association and company law do not restrict shareholders from investing in two companies of the same type at the same time. However, in practice, this can seriously damage a certain company. If you want to hold them responsible for leaking information, then your burden of proof will be very heavy. At this time, in order to avoid this risk, we can clearly stipulate in the shareholder agreement at the beginning of the company's establishment that shareholders have a non competition obligation. At what time does the non competition obligation of shareholders be fulfilled? During the period of holding company equity and after he transfers all his shares of the company, he must abide by this non competition obligation for two years. Obligation, some people say it's possible to break through the two-year limit. Lawyer Wang suggests it's best to do so within two years, But if you insist on breaking through, there are no prohibitive provisions in the law.

　　公司成立之后得有人干活呀,所以就是分工机制也很重要,你负责什么,我负责什么,如果我负责的我搞砸了,你有权追责我,如果你负责的,你给公司造成损失了,我有权追责你,这个叫分工机制,分工机制在实践操作当中,又存在很大的落地困难,为什么,这里讲三个要点,第一，公司的核心岗位成员,到底谁有权来认,这个属于兵家必争之地啊,你比如说法人、董事、监事、经理、副经理、财务人员、采购人员,甚至公司的研发人员,那到底谁有权来任免,第二个是什么呀,股东各自的分工是什么,我不管你在公司有没有任职,我不管这些岗位上是谁的人,那你自己要不要给公司贡献一份力量,所以这个属于股东各自的分工负责的内容,也要在股东协议里面写清楚,第三个，分工机制里面要写清楚的是什么,是结合你们已经搭建好的股权架构,比如说你搭建了家族公司、平台公司、主体公司、项目公司,各自股东的权利如何行使,义务如何行使,比如说这个主体公司里面虽然没有我的人,但是平台公司的法定代表人是我的人,那我如何以平台公司法定代表人来行使,这个分工的职责,就是在我们股东协议的分工机制里面,要把它写清楚的内容。

　　After the establishment of a company, there must be someone to work on it, so the division of labor mechanism is also very important. You are responsible for what you are responsible for, and I am responsible for what I am responsible for. If I mess up what I am responsible for, you have the right to hold me accountable. If you are responsible for what you have caused losses to the company, I have the right to hold you accountable. This is called the division of labor mechanism. In practical operation, there are great difficulties in implementing the division of labor mechanism. Why? Here are three key points. First, who has the right to recognize the core position members of the company? This is a fiercely contested area. For example, legal persons, directors, supervisors, managers, deputy managers, financial personnel, procurement personnel, and even R&D personnel of the company? Who has the right to appoint and dismiss them? What are the two? What is the division of labor among shareholders? I don't care if you hold a position in the company, I don't care who these positions belong to, Do you want to contribute to the company yourself? Therefore, this is the responsibility of each shareholder's division of labor, and it should be clearly stated in the shareholder agreement. Thirdly, the division of labor mechanism should specify what it is, based on the equity structure you have already established. For example, if you have established a family company, platform company, main company, and project company, how should the rights and obligations of each shareholder be exercised? For example, although there is no one of mine in the main company, the legal representative of the platform company is mine, so how can I exercise it as the legal representative of the platform company? The responsibility of this division of labor should be clearly stated in the division of labor mechanism of our shareholder agreement.

　　那公司赚钱了,股东协议的第四个机制啊,叫分红机制,股东协议的分红机制啊,有很多的写法,那么我们在分红机制里面,第一个要约定清楚的是,我们多久分一次红,按年度分红还是按半年度分红,还是按季度分红,同时呢，我们要列清楚,那我每年，如果公司今年有赚到钱的话,那要拿出来百分之多少,必须要用于分红,注意哈,如果你是公司的小股东,这一个条款最好要写进股东协议里,比如说公司每年要拿出来净利润的10%,进行分红,以保证你每年手上都是可以拿到一点钱的的吧,下面还有很多哈,我这里只展示了表格的内容,这里列出来的呢,是同股不同酬的写法啊,如果某一个股东的工作贡献特别大,我们可不可以给他多分红,要在分红机制里面写清楚,还有就是股东按照什么规则进行分红,是按照实缴比例分红,还是按照认缴比例分红,还是按照同股不同酬比例分红,都是放在我们的分红机制里面,要约定清楚的。

　　The company has made money. The fourth mechanism of the shareholder agreement, called the dividend mechanism, has many ways of writing. In the dividend mechanism, the first thing we need to agree on is how often we will distribute the dividends, whether it will be distributed annually, semi annually, or quarterly. At the same time, we need to list clearly. If the company makes money this year, how much of it must be used for dividends? Note that if you are a minority shareholder of the company, this clause is best written into the shareholder agreement. For example, the company needs to allocate 10% of its net profits for dividends every year to ensure that you can receive them every year. It's a little bit of money, there are many more below. I only showed the content of the table here, and what's listed here is the writing style of different pay for the same share, If a shareholder's work contribution is particularly significant, can we give them more dividends? It should be clearly stated in the dividend mechanism, as well as the rules according to which shareholders distribute dividends, whether it is based on the actual payment ratio, the subscribed ratio, or the different remuneration ratio for the same share. All of these are included in our dividend mechanism and must be clearly agreed upon.

　　那股东协议的第五个机制叫未来展望机制,你这份协议做出来要贯穿于你公司存续始末,也就是说你要考虑到未来可能发生的各种情形下,要不要预留一部分的股权,作为股权激励的比例,那预留的情况下,是大家同比利息,是以增资的方式,还是说某一个股东唉,特别大方地让渡出来百分之多少的股权,这个叫股权激励的预留,那么还有一些情况,公司增资的时候,大股东可不可以要求小股东跟他保持一致意见,以避免公司缺资金了,小股东不同意,投资人引进不来这种公司僵局,所以未来展望机制里面,关于公司未来的融资方向,稀释规则一定要讲清楚,还有就是公司如果有一天被收购了,大股东要卖的情况下,要不要拉着小股东一起把股权卖掉,还有就是公司未来上市的时候,你的一些通不通筹,通过不同权的规划要不要做调整,这些都属于未来展望机制,要在我们的股东协议里面写清楚的。

　　The fifth mechanism of the shareholder agreement is called the future outlook mechanism. When you make this agreement, it should run through the entire existence of your company. That is to say, you need to consider whether to reserve a portion of the equity as the proportion of equity incentive in various possible future situations. In the case of reservation, it is the year-on-year interest of everyone, whether it is through capital increase, or whether a certain shareholder generously transfers a certain percentage of the equity, which is called equity incentive reservation. In addition, there are also some situations where when the company increases capital, the major shareholder can ask the small shareholder to maintain a consensus with him to avoid the company's lack of funds. If the small shareholder does not agree, the investor cannot bring in this kind of company deadlock. Therefore, in the future outlook mechanism, Regarding the future financing direction of the company, the dilution rules must be clearly explained, Also, if the company is acquired one day and the major shareholder wants to sell, should we bring in the minority shareholders to sell their shares together? Also, when the company goes public in the future, should you make adjustments to your plans through different rights that cannot be raised? These are all part of the future outlook mechanism and should be clearly stated in our shareholder agreement.

　　那股东协议的最后一个机制呢,也是最重要的一个机制,叫退出机制,退出机制是最最容易引发股东纠纷,股权诉讼的一个争议的焦点,那么这个机制一定一定要约定好,王律师建议你区分为两个板块,一个叫股权转让退出,一个叫股权回购退出,可能有人就说了哈,股权转让退出,不就是公司章程上约定的股权转让吗,其实除了公司章程上约定的股权转让之外,我们对于股权转让退出,还可以做进一步的细化规定,你比如说当有的股东不遵守,其他股东的优先购买权,那怎么办呢,救济措施就写在我们股东协议的退出机制里面,还有一种约定哈,就是我们搭建完股权架构之后呀,有的股东有可能会通过,卖掉他持有的家族公司的股权,或者他持有的平台公司的股权,从而脱手,如果你没有签署股东协议,你股东协议里面对这部分,没有做出特殊约定的情况下,那你很难规制到他们的行为,所以这也就是为什么退出机制这么重要的原因,然后是股权回购退出,那一般情况下属于强制回购,会约定于几种情形,比如说公司的股东,把公司的股权卖给公司的竞争对手了,有什么样的惩罚性回购机制,公司的股东怠于履行股东职责,再比如说两个股东之间发生了这种经营理念的分歧,导致公司决策僵局了,公司经营不下去了,怎么样的一个回购价格、回购约定,再比如说有的管理股东唉,在管理公司期间,资产的私事的处置行为的时候,如何进行一个强制回购约定,就放在我们的退出机制里面。

　　What about the last and most important mechanism of the shareholder agreement, called the exit mechanism? The exit mechanism is the most likely to cause shareholder disputes and a focal point of equity litigation. Therefore, this mechanism must be well agreed upon. Lawyer Wang suggests that you divide it into two parts: one is called equity transfer exit, and the other is called equity repurchase exit. Some people may have said that equity transfer exit is the equity transfer agreed upon in the company's articles of association. In fact, in addition to the equity transfer agreed upon in the company's articles of association, we can also make further detailed provisions for equity transfer exit. For example, when some shareholders do not comply, what should be done with the priority purchase rights of other shareholders? The relief measures are written in the company's articles of association. In the exit mechanism of our shareholder agreement, there is another agreement, which is that after we have established the equity structure, Some shareholders may sell their equity in the family company or the platform company they hold, in order to get rid of them. If you have not signed a shareholder agreement and there are no special provisions in the shareholder agreement regarding this part, it is difficult to regulate their behavior. Therefore, this is why the exit mechanism is so important. Then, equity repurchase exit, which is generally a mandatory repurchase, will be agreed upon in several situations. For example, if the company's shareholders sell the company's equity to a competitor, what kind of punitive repurchase mechanism is there, if the company's shareholders fail to fulfill their shareholder responsibilities, or if there is a difference in business philosophy between two shareholders, it will lead to a decision-making deadlock in the company. What kind of repurchase price and repurchase agreement is the company unable to continue operating, For example, some management shareholders may wonder how to make a mandatory repurchase agreement when disposing of private assets during the management of the company, which is included in our exit mechanism.

　　那这个股东协议里面,一定要约定六大机制的内容,进入机制、退出机制,规则机制、分工机制、分红机制和未来展望机制。如果大家对股权上还有什不清楚的事项可以留言沟通。

　　In this shareholder agreement, it is necessary to stipulate the contents of the six major mechanisms: entry mechanism, exit mechanism, rule mechanism, division of labor mechanism, dividend mechanism, and future outlook mechanism. If there are any unclear matters regarding equity, please leave a message for communication.

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