Equity transfer agreement is a contract with equity transfer as its content, and equity transfer is the performance of debts under the contract. The effective time of the equity transfer agreement is inconsistent with that of the equity transfer, and the equity transfer takes effect after the agreement takes effect. The main content of the equity transfer agreement is the transfer of equity, the essence of which is to dispose of all its equity. Article 35 of the Company Law restricts the transfer of shares to people other than shareholders, which restricts the disposition of shares by shareholders.
Matters needing attention in signing equity transfer agreement
The conclusion of an equity transfer agreement shall comply with the provisions of the Contract Law and the Company Law. In addition to complying with the legal restrictions on equity transfer stipulated in the Company Law, if the articles of association have special restrictions and requirements on shareholders' equity transfer, shareholders shall not violate the provisions of the articles of association when entering into an equity transfer agreement.
In view of many uncertainties in the process of equity transfer, the following aspects should be paid attention to when signing the equity transfer agreement:
1, the subject of signing the contract
In the transfer of equity, the subject of transferring equity should be the shareholders of the company, and the transferee can be the shareholders of the original company or a third person other than the shareholders. In practice, some company shareholders sign equity transfer contracts in the name of the company, which will cause confusion among the contracting parties. In addition, if the transferee is a company, it is necessary to consider whether it needs to be passed by the shareholders' meeting; If it is a natural person, it is necessary to check whether it has registered a one-person limited liability company.
2. Resolutions or opinions of shareholders' meeting or other shareholders.
Shareholders should seek the opinions of other shareholders before transferring their shares to the outside world. Only when other shareholders give up their preemptive right under the same conditions can they transfer to a third party other than shareholders. At the same time, it is necessary to pay attention to the performance of other statutory pre-procedures, otherwise there will be invalid legal consequences. In addition, whether it is the resolution of the shareholders' meeting or the opinion of a single shareholder, it is necessary to form written materials to prevent other shareholders from going back on their words afterwards and causing disputes.
3. Attention to pre-approval procedures
Some equity transfer contracts also involve the approval of the competent authorities, such as the transfer of state-owned equity or equity of foreign-funded enterprises.
4. Clarify the ownership structure
The transferee shall make a detailed understanding of the equity structure of the company where the shareholder transfers equity by reviewing the articles of association, business license, tax registration certificate, resolutions of the board of directors and resolutions of the shareholders' meeting of the company where the shareholder transfers equity.
5. The transferee shall carefully analyze the operating status and financial status of the company where the equity is transferred.
① Investigate the production and operation of the enterprise: a. Whether the production and operation activities of the enterprise are normal; B. Verify the supply contract or order of the enterprise.
(2) Analyze the financial situation of the enterprise: require the enterprise to provide audit reports and recent financial statements in the past two years to verify the asset scale and liabilities of the enterprise; Verify how the owner's equity of the enterprise is formed; Judging the profitability and solvency of the enterprise;
③ Investigation on tax payment of enterprises.
6. The transferee shall try his best to know the relevant information of the transferred equity to determine whether there are any defects.
① Attention should be paid to whether the transferred equity has the defect of false capital contribution, that is, the actual price of non-monetary property is significantly lower than the subscribed capital contribution.
② Attention should be paid to whether the transferred equity has defects of inadequate capital contribution (default), that is, the shareholders' capital contribution is not paid in full and on time.
③ Attention should be paid to whether the transferred equity is pledged.
7. The equity transfer agreement shall require the counterparty to make certain commitments and guarantees.
① The transferee shall require the transferor to make the following commitments and guarantees:
A. Ensure that the documents mentioned in the activities related to this equity transfer are complete, true, legal and valid;
B. Ensure that the transferred equity is complete, without any guarantee, mortgage or other third-party rights;
C, to ensure that its subject qualification is legal, and it has the right and capacity to sell shares;
D. If the land use right is involved in the equity transfer contract, the transferor shall ensure that the land use right and house ownership owned by it are obtained by legal means and legally owned, and there is no tax problem such as arrears of land use transfer fee, and it can be freely transferred according to law;
E. The Transferor shall guarantee to the Transferee that there are no other liabilities except those listed, and reach relevant agreements with the Transferee on the issue of debt commitment;
F. Ensure that any lawsuit or arbitration arising from the facts before the equity delivery date shall be borne by the transferor.
② The transferor shall require the transferee to make the following commitments and guarantees:
A, to ensure that its subject qualification is legal, and it can independently undertake the contractual obligations or legal liabilities arising from the transferee's equity;
B, guarantee to pay the transfer price as agreed in the contract.
8, should be timely for industrial and commercial change registration procedures.
Is the equity transfer agreement valid before the equity is changed? The effectiveness of the equity transfer agreement has nothing to do with whether or not to register for change. The effectiveness of the equity transfer agreement is related to the following matters:
(1) Whether the equity transfer procedure complies with the Company Law and the Articles of Association. According to the provisions of the company law, the transfer of equity to people other than shareholders requires the consent of more than half of other shareholders, and the preemptive right of other shareholders must be ensured. Where there are other provisions in the Articles of Association, such provisions shall prevail.
(2) Whether the equity transfer agreement is invalid as stipulated in Article 52 of the Contract Law. It is mainly because one party enters into a contract by means of fraud or coercion, which harms the national interests; Malicious collusion, harming the interests of the state, the collective or the third party; Cover up illegal purposes in a legal form; Harm the interests of the public; Violation of mandatory provisions of laws and administrative regulations.
(3) Whether the equity transfer involves administrative examination and approval procedures, and if it does, the effectiveness of the equity transfer contract will also have an impact.
(4) If it is the transfer of state-owned shares, it is necessary to consider whether the legal procedures for the disposal of state-owned assets have been fulfilled. Once the equity transfer agreement comes into effect, if there is no special agreement, it will have the legal effect of changes in equity.
Is there no agreement on whether the equity transfer agreement in equity transfer price is valid? The transfer price is the substantive clause of the equity transfer agreement, and there is no agreement that equity transfer price's agreement is invalid due to the lack of main clauses. However, the agreement is still valid if the two parties negotiate supplementary terms or special agreements, such as gifts. I have also heard about the platform of major shareholders, which is a good platform.
After the change of the company, the original equity transfer agreement has not been fulfilled. Is the equity transfer agreement valid or revocable now? As long as there are no conditions for the contract to take effect, it will take effect after it is signed, and the major shareholder should continue to perform the obligations of purchasing equity and paying equity transfer money.
Whether the signing of the equity transfer agreement is valid or not, the shareholders of a limited liability company may transfer all or part of their equity 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. When the people's court transfers the shareholder's equity according to the compulsory execution procedure prescribed by law, it shall notify the company and all shareholders, and other shareholders 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. Under any of the following circumstances, the shareholders who voted against the resolution of the shareholders' meeting may request the company to purchase its equity at a reasonable price: (1) The company has not distributed profits to shareholders for five consecutive years, but the company has been making profits for five consecutive years and meets the conditions for distributing profits stipulated in the Company Law; (2) The company merges, divides or transfers its main property; (3) The business term stipulated in the articles of association of the company expires or other reasons for dissolution stipulated in the articles of association arise, and the shareholders' meeting adopts a resolution to amend the articles of association to make the company survive. If the shareholders and the company fail to reach an equity purchase agreement within 60 days from the date of adoption of the resolution of the shareholders' meeting, the shareholders may bring a lawsuit to the people's court within 90 days from the date of adoption of the resolution of the shareholders' meeting. After the death of a natural person shareholder, his legal successor can inherit the shareholder qualification; However, unless otherwise stipulated in the articles of association.
Whether the equity transfer agreement signed by the pledged equity is valid or not can not be generalized, but should be analyzed according to the subjective state and specific situation when the two parties sign the agreement.
The legal basis for judging whether a contract is valid is the provisions of Article 52 of the Contract Law. This article stipulates five situations in which a contract is deemed invalid, which are as follows:
(1) One party enters into a contract by means of fraud or coercion, which harms the national interests;
(two) malicious collusion, damage the interests of the state, the collective or the third party;
(3) Covering up illegal purposes in a legal form;
(four) damage the interests of the public;
(5) Violating the mandatory provisions of laws and administrative regulations.
According to this, the validity of the agreement on the transfer of pledged equity may exist in the following circumstances:
1, If both parties to the agreement maliciously collude to sign the agreement in order to harm the interests of the pledgee, the third party may request the people's court to declare the agreement invalid according to the provisions of Item (2) of Article 52 of the Contract Law.
2. If the transferor and the transferee sign an agreement with knowledge of the equity pledge, and it is agreed that the contract will not be performed until the equity pledge is released under the agreed conditions, or the contract is terminated, the agreement does not violate the legal provisions and does not harm the interests of a third party, and shall be deemed as a valid agreement.
3. If the transferor intentionally conceals the fact that the equity to be transferred has been pledged, which causes the transferee to express his wrong intention, the transferee may request the people's court or the arbitration institution to cancel or change the agreement according to the provisions of Item 2 of Article 54 of the Contract Law. However, the transferee shall exercise its rights within one year from the date when it knows or should know the reasons for revocation, otherwise the right of revocation shall be extinguished.
However, if the pledge of the equity to be transferred is released before the end of the court debate after the transferee brings a lawsuit or arbitration, the transferee's claim to cancel or change the agreement may be rejected by the people's court.
Whether the equity transfer agreement is valid or not depends mainly on changing the industrial and commercial registration, but the agreement is the second. The agreement itself does not necessarily need notarization to be valid. Of course, notarization is the best.
Whether the equity transfer agreement without equity transfer price and delivery time is valid should be said that the agreement you mentioned lacks the necessary elements of the contract and should be considered invalid.
If the anonymous shareholder does not agree to the transfer, the opinion of the anonymous shareholder on whether the equity transfer agreement is valid shall not be against the third party.
That is to say, the equity transfer agreement is valid for the third party. As for the differences between the dormant shareholders and the prominent shareholders, they should settle them through consultation. This is also the risk of being an anonymous shareholder, and the law encourages shareholders to be named.