1. The risks of holding equity on behalf of the company are as follows:
1, agreement on equity ratio; There are many possibilities of changes in the company's equity in the future. For example, the proportion of holding equity on behalf of the company is not static, and the company's future capital increase and share expansion will lead to the dilution of the equity ratio, so it will be difficult to protect the interests of the actual investors.
2. The risk that it is difficult for the actual investor to establish the shareholder status; Although the judicial interpretation affirmed the effectiveness of the equity holding agreement, the investment rights and interests are not equal to the shareholders' rights and interests, and the investment rights and interests can only be claimed to the nominal shareholders (holders), but not directly to the company, which has certain limitations. According to the interpretation of the company law, only with the consent of more than half of the shareholders of the company can the actual investor request the company to change its shareholders, issue a capital contribution certificate, record it in the register of shareholders, record it in the company's articles of association and register with the company registration authority.
3. The risk that the nominal shareholder infringes the interests of the actual investor; In the general shareholding relationship, the actual investor is behind the scenes, and the nominal shareholder is in front of the stage to exercise the shareholder's rights. Faced with various temptations, it is likely that the nominal shareholder will infringe on the interests of the actual investor. For example, the nominal shareholders do not transfer the asset income to the actual investors, abuse the shareholders' rights (major decision-making matters have not been negotiated), and dispose of the equity (transfer and pledge) without authorization.
4. Risks of nominal shareholders; For example, when the actual investor fails to fulfill the obligation of capital contribution, if the creditor makes recourse, the nominal shareholder needs to undertake the obligation to repay the capital contribution within the promised capital contribution scope, and cannot refuse to bear the responsibility on the grounds that he is not the actual investor.
5. Tax risks of future equity transfer; Of course, if the actual investor and the nominal shareholder cooperate well, the above risks may be avoided. However, there is still an unavoidable problem in the escrow agreement-that is, the tax risk of future equity transfer. When the conditions are ripe and the actual investor is ready to cancel the holding agreement, the tax problem will follow-from the appearance, the actual investor has received the equity from the nominal shareholder, and of course it needs to pay taxes. Usually, the tax authorities do not recognize the argument that the parties have not transferred the equity because of the holding relationship, and require that the tax be calculated at fair value.
6. Holding the shares on behalf of the company is risky. Although the judicial interpretation affirms the effectiveness of the agreement on holding the shares on behalf of the company, the investment rights and interests are not the same as the shareholders' rights and interests. The investment rights and interests can only be claimed from the nominal shareholders, but not directly from the company, which has certain limitations.
legal ground
Company Law of the People's Republic of China
Article 71
Shareholders of a limited liability company may transfer all or part of their shares to each other.
Shareholders' transfer of equity to persons other than shareholders shall be approved by more than half of other shareholders. Shareholders shall notify other shareholders in writing about the transfer of their shares for approval. If other shareholders fail to reply within 30 days from the date of receiving the written notice, they shall be deemed to agree to the transfer. If more than half of the other shareholders do not agree to the transfer, the shareholders who do not agree shall purchase the transferred equity; Do not buy, as agreed to transfer.
Under the same conditions, other shareholders have the priority to purchase the equity transferred with the consent of shareholders. If two or more shareholders claim to exercise the preemptive right, their respective purchase proportions shall be determined through consultation; If negotiation fails, the preemptive right shall be exercised in accordance with their respective investment proportions at the time of transfer.
Where there are other provisions on equity transfer in the articles of association, such provisions shall prevail. Article 72 When a people's court transfers a shareholder's equity according to the compulsory execution procedure prescribed by law, it shall notify the company and all shareholders, and other shareholders shall have the preemptive right under the same conditions. Other shareholders who fail to exercise the preemptive right within 20 days from the date of notification by the people's court shall be deemed to have waived the preemptive right.