Text/Mantis Finance (ID: TanglangFin)
Author/Li Yonghua
Small and medium-sized investors who have suffered losses in the volatility of the stock market have recently spent a very depressed time. Although from the overall index, the "slow bull" is established, the performance of many stocks makes them heartbroken.
In Boyun’s treacherous capital market, in addition to small and medium-sized investors, the interests of listed companies themselves and the major shareholders behind them are also being damaged by some “conventional practices” in the market, but they are rarely seen on the surface. But it is also worthy of attention.
The drawer protocol is one of them.
Not long ago, the Shandong Higher People's Court made a final judgment on the contract dispute between Ran Sheng Shengyuan and Huayou Company, and upheld the original judgment of the Jinan Intermediate People's Court, which required Ran Sheng Shengyuan to still perform the contents of the drawer agreement.
In the capital market, Drawer Agreements are widespread, and all walks of life are at odds on their compliance. This decision makes Drawer Agreements, an embarrassing species, seem to have received a strong endorsement.
However, judging from the birth background of the drawer agreement and the various problems that often exist in the specific drawer agreement, to truly maintain market stability and the interests of listed companies and shareholders, it may be better that the drawer agreement is not allowed to be implemented. If the parties are true For the sake of major shareholders and for the shareholders who are ultimately affected, perhaps such an agreement should not be implemented.
The "technological" curse appeared in the legal ruling of the drawer agreement?
Let's take a brief look at the incident first.
In February 2018, Ran Sheng Shengyuan signed a "drawer agreement" called "Confirmation Agreement" with Zheng Qiang, the original shareholder of Zhongrun Resources, stipulating that Ran Shengshengyuan will introduce strategic investors to take over all remaining Zhongrun resources held by Zheng Qiang If the stock transfer price does not meet Zheng Qiang's expectation, Ran Sheng Shengyuan will make up the difference.
Such an agreement, if put on the surface, is a very common gambling agreement, but once it exists in the form of a drawer agreement, it may change its flavor.
Digging deeper into the facts behind the agreement, it can be seen that at the time of signing, Ran Sheng Shengyuan already held 25% of the shares of Zhongrun Resources and was already the largest shareholder, while the other party to the agreement, Zheng Qiang, only held about 7% of the shares.
The question is, why do major shareholders spend huge sums of money to make up for 7% of minority shareholders? Not only that, but the consideration is that small shareholders coordinate the board's reelection. This is very unreasonable, and it has to be reminiscent of the plots of those TV dramas: small shareholders and the board of directors improperly control the listed company, and some careful arrangements...
If it is a clear agreement, this possibility becomes very low. It is open to the public and everyone can see it. Investors will also see the disclosure clearly and will not engage in various "hands and feet"; but as a drawer agreement, It is unavoidable to ask people, especially under the unreasonable logic, why the original shareholders can continuously control the listed company with only small shares? Is the content of the agreement reasonable and compliant, and is there any forced signing? Will it harm the interests of listed companies and shareholders? This one is still worthy of scrutiny.
If so, the drawer agreement should obviously not be enforced.
Looking further, even from the most basic legal spirit, such an agreement does not seem to be suitable for enforcement.
The well-known legal person, Luo Xiang, who has tens of millions of fans at station B, once gave this point of view on legal studies: Law should not fall into technicalism, but should respect common sense and the "humanity" feelings of ordinary people, otherwise it will fall into In arrogance.
In the aforementioned drawer agreement, the strategic investor that Ran Sheng Shengyuan introduced was a state-owned enterprise. The purchase price at that time was about 6 yuan. Since the purchase, the share price of the listed company has been sluggish. If the price difference is now fulfilled at the price signed at that time, it may be necessary With hundreds of millions of dollars, it is hard to say that this is a fair and reasonable agreement.
And more importantly, regarding the issue of Zhongrun Resources, the China Securities Regulatory Commission is still investigating and obtaining evidence, which means that whether the assets promised by Zheng Qiang is true is not yet clear. If such a drawer agreement is required to be implemented at this time, will it be Cause the shareholders in violation of the regulations to benefit the listed company and other investors and be unable to recover?
The result will be the loss of the interests of all shareholders of the company, including major shareholders and small and medium investors.
In this case, the law should probably break away from the technicalism of the clause itself, and return to a series of backgrounds behind the agreement to look at the facts in detail and propose solutions.
Is it ubiquitous, is there a valid reason for the drawer agreement?
Some people think that the drawer agreement has become a default existence, both "long history" and "widely existing", so it is reasonable.
This is a typical way of thinking that uses existence as a reason. Obviously, it is not tenable.
The “drawer agreement” that only the signatory knows about was carried out in secret and was deliberately not allowed to “see the light”, which means that it naturally has a more serious “unreasonable” tendency. For the company, this type of agreement violates information disclosure rules.
This can be seen from the drawer agreement of Zhongrun Resources. It has many doubts in content and requires careful consideration in the background of the agreement. It represents the inherent properties of the drawer agreement that are generally not visible, and its innate nature The attributes of the species at risk are fully revealed.
On the one hand, the agreement itself may harm the interests of major shareholders and other related shareholders for some reasons. On the other hand, for small and medium investors who only trade on the stock market, they face another unknown agreement. If it exists, it is very likely that it is impossible to measure whether the agreement will have a negative impact on the listed company. Those who are concealed may eventually become the backers of the "Drawer Agreement". This has to be said to be extremely scary.
In fact, even if we don’t care about the shareholders’ "what hurts", in an open market-oriented capital market, the drawer agreement does not fit the fundamental concept of "open", which may infringe the knowledge of investors, especially the majority of retail investors. The possibility of rights, if encouraged and allowed, may have more serious consequences. In particular, the general violations of guarantees by listed companies in the drawer agreement should be strictly punished to keep the bottom line of the industry.
Of course, looking back, the Drawer Agreement has been "opened one eye and closed one eye" in recent years, largely because of its "lubricant" function. Many public scenes cannot reconcile the contradictions, and quietly signed a lock. The agreement in the drawer is only used when something goes wrong, and it does allow many things in the capital market to advance more quickly.
However, this is only one side of the Drawer Agreement facing the interests of specific subjects. On the other side, it is the corporate shareholders who may be at a disadvantage, the majority of small and medium investors, and the majority of shareholders who self-deprecate as "leeks."
Regardless of the law, just from a social perspective, which side should be biased, in fact, there is already an answer-to maintain market order, ensure the normal operation of listed companies, protect the legitimate interests of major corporate investors, and protect the interests of small and medium shareholders, we will Can no longer condone the drawer agreement.
Under the effect of precedent, the drawer agreement is being encouraged?
China is not a case law system like the United States. A case law can be copied in subsequent trials of the same case. However, it cannot be ignored that in judicial practice, similar precedent effects may exist more or less, and those typical cases in a certain field often become a criterion, triggering subsequent cases to be tried from similar logic.
Therefore, on the one hand, the drawer agreement has many problems and should not be encouraged and should not be implemented. On the other hand, the drawer agreement is gaining a precedent effect. More drawer agreements will be strictly implemented through the legal technical path. Therefore, the drawer agreement Increasingly, it has become a bright agreement, which may cause latecomers to flock to it.
If the drawer agreement between shareholders involved in Zhongrun Resources is implemented, it will undoubtedly be a huge victory for the “square” (supporting party) of the drawer agreement, and the widespread controversy in the capital market will be closed to a certain extent. In conclusion, the drawer agreement will be more swaggered and hidden in the drawer in the future.
However, this may not be what we want to see.
Perhaps, as the "anti-party" of the drawer agreement, certain concessions can be made, that is, under the background that the normal operation of listed companies may be impacted and the interests of major shareholders and small and medium investors may be impaired, the drawer agreement may also be allowed to a certain extent. Existence, especially under extremely strict supervision, helps the capital market to be more lubricated.
However, this is only relative to those agreements that have been exposed and confirmed that there are no compliance or legal issues, or those drawer agreements that have not been signed but are expected to be strictly regulated. For those drawer agreements that have been exposed to various problems, if they are allowed to be implemented again, it will become an encouragement to problematic behaviors, rather than helping the capital market lubricate behaviors (and have certain legitimacy) Encouragement is obviously not appropriate.
All in all, the Drawer Agreement has become the "invisible bomb" of the capital market. This is not terrible. What's terrible is that instead of dismantling the bombs with huge hidden dangers, we encourage the placement of more uncontrolled bombs, which is violent in the stock market. At the moment, this issue is worthy of attention and worthy of consideration from all walks of life.
*The pictures in this article are from the Internet