Equity TransferIt refers to the civil legal act in which the shareholders of the company sell, donate, or exchange their shares to other individuals or companies in accordance with the law, so that others become shareholders of the company. With the development of the socialist market economy, equity transfer has become an important capital means for enterprises to finance and optimize the equity structure. Well, in the process of equity transferWhat are the common legal risks? What can be done to prevent it?
1. Risk of infringement of shareholders' preemptive rights
According to the relevant laws and regulations, the transfer of equity by a shareholder of a limited liability company to a person other than the shareholder shall be through the other shareholdersMore than halfagreed, should be on the transfer of its equityWritten NoticeOther ShareholdersAsk for consent
If the transferor infringes on the shareholder's right of first refusal to transfer the equity, the other shareholders have the right to claim to purchase the equity under the same conditions as agreed in the equity transfer contractPossible impactThe validity of the equity transfer contract will also allow the transferorBear the corresponding liability for breach of contract.
Precautionary measures:
As the transferor,Not only should the other shareholders be informed of the transfer in writing, but alsoexpressly accepted in written noticeTransferee, number of transfers, transfers**, payment methods, performance periods, etcMain content:and retain those who have fulfilled their notification obligationsRelevant evidence
as a transferee,The assignor may be required to make commitments and warranties in the contract of assignment and to specify accordinglyLiability for breach of contract, preferably in gettingA written statement that the other shareholders have waived their right of first refusalAfter that, the equity will be transferred.
As other shareholders,Note from the moment you receive the notificationWithin thirty daysIf the right of first refusal is otherwise provided for in the articles of association, the articles of association shall prevail.
2. Unauthorized transfer without the consent of the spouse
According to the relevant laws and regulations, the amount of capital contribution obtained from the joint property of the husband and wife during the existence of the marital relationship, even if it is registered in the name of one of the partiesIt is also the joint property of the husband and wife. If the shareholders take the following to:Concealment, transfer, sale, damagefor the purpose of joint property of the husband and wifeBad faith transfersEquity rights, which infringe on the joint ownership of property of one of the spouses, and the transferee has this in respect of itKnowingly, one of the spouses has the right to claim the equity transferThe action is invalid.
Precautionary measures:
The transferor of equity in a natural person isMarriedIn this case, the transferee must consider the issue of the right to dispose of the joint property of the husband and wife. The transferee may request the transferorProvide spousal consentWritten proof of the husband and wife's agreement on personal property, etc., to prove that they are bona fide and have obtained the equity with the consent of both husband and wife.
3. Defects in the capital contribution of the underlying equity
The registered capital of a limited liability company is the amount of capital contribution subscribed by all shareholders registered with the company registration authority, and shareholders can use non-monetary assets such as physical objects, intellectual property rights, and land use rights as capital contributions, so the underlying equity may existDefective circumstances such as failure to actually pay capital contributions, false capital contributions, and withdrawal of capital contributions.
Shareholders in accordance with the relevant legal provisionsUnfulfilled or not fully performedIn the event of an equity transfer due to capital contribution obligations, the transferee shall be entitled to thisKnew or ought to have knownThe company has the right to require the shareholder to perform the obligation of capital contribution in accordance with the provisions of the law or the articles of association, and the company may also request itThe transferee shall bear the obligation of joint and several capital contribution. The creditors of the company have the right to require the shareholders to bear supplementary liability for compensation within the scope of the shareholders' unfunded capital, and the transferee may existJoint indemnityrisk.
Precautionary measures:
According to the relevant laws and regulations, the transferee shareholder shall:Proof of Evidence, at the time of the transfer of equity, the capital contribution has been exhaustedDuty of reasonable review,Otherwise, the transferring shareholder may be jointly and severally liable for the non-capital contribution obligation. Therefore, before signing the equity transfer agreement, the transferee should respond to the capital contribution of the target equity and the liabilities of the target companyConduct due diligenceand keep it relevantEvidenceAfter making a preliminary analysis and judgment, further discuss the equity transfer with the transferor.
4. Defects in the signing of the transfer agreement
The main terms of the equity transfer agreement are the amount of the equity transfer price, the method and time of payment, the time for the registration of equity change, and the liability for breach of contractThere is no agreement or the agreement is unclear, etc。In this case, it is very easy to produce pairsFulfillment standardsdisputes, even onWhether an agreement is reachedDisputes arise.
Precautionary measures:
The contract content of the equity transfer agreement should beAs perfect as possibleImportant terms should be clearly agreed to avoid disagreements, and they can be hired if necessaryProfessionals review the terms of the contract. When the equity transfer agreement is signed, as far as possibleDon'tLet someone else sign it on your behalfRequirements:The other party himself signs and seals or seals.
5. Performance of the equity transfer agreement
After the equity transfer agreement is signed, the main obligation of the transferor is to the transfereeTransfer of equity, the main obligation of the transferee is to the transferor in accordance with the agreementPayment of the transfer price。Note that only after the change of the company's register of shareholders and the registration of industrial and commercial changesThe equity transfer is truly completed.
Precautionary measures:
Amend the articles of association and the register of shareholders and the records of their capital contributions, and handle the registration of changes in accordance with the lawIt is the obligation of the companyThe transferor shall promptly notify the company in writing of the equity transfer and perform the obligation of assistanceThe transferor is no longer liable.
The target company shall be on the date of change of shareholdersWithin 30 daysGo to the market supervision and administration department to go through the formalities for changing the registration. If the company fails to perform its obligations in a timely manner, the transferee maySue the company in accordance with the law, requesting the court to order the company to fulfill its obligations under the law, change the articles of association, register of shareholders and change the industrial and commercial registration.
The equity transfer process generally has a large time span, the process is relatively complex, and involves many legal risks, which enterprises shouldStrengthen the awareness of risk prevention, standardize the equity transfer procedures, and reasonably determine the equity transferHealthy, stable and long-term development.
For more legal issues, it is recommended that you join the Ji'an Legal Protection Network (Shouxin Guolu).Communicate the situation in a timely manner, learn more about legal information, enjoy the exclusive review and determination of the equity transfer agreement, improve the terms, review the loopholes, and prevent risks; If you encounter an equity dispute, you can also do a good job of collecting pre-litigation evidence, writing a complaint, promoting the litigation process, and speeding up the protection of rights under the guidance of professional legal counsel.