股权转让_百度百科

Stock right Transfer is a common and common way for shareholders to exercise their equity rights. Company law The shareholder shall have the right to transfer all or part of his capital contribution by legal means.

The system of free transfer of shares, yes Modern company system One of the most successful performances. With China Market economy system The establishment of state-owned enterprises and reform Company law The implementation of equity transfer becomes an enterprise to raise capital, Flow of property rights Recombination, Optimal allocation of resources The important form of the resulting dispute is most common in corporate litigation, among which Equity transfer contract The validity of this kind of case is the difficulty of the trial.

Equity transfer agreement It is an expression of the intention that the transferor delivers the equity and receives the premium and the transferee pays the premium to get the equity for the purpose of transferring the equity. Equity transfer is a kind of real right change behavior. After equity transfer, all the rights and obligations of the shareholder to the company based on the status of the shareholder are transferred to the assignee at the same time, so the assignee becomes the shareholder of the company and obtains Stockholder's right .

According to the Contract law Article 44, paragraph 1, the equity transfer contract shall become effective upon its formation. However, the effectiveness of equity transfer contract is not equivalent to the effectiveness of equity transfer. The validity of equity transfer contract refers to the issue of legal binding on the parties to the contract. The validity of equity transfer refers to the issue of when the equity transfer occurs, that is, when the transferee obtains the identity of the shareholder Business administration department Only after the corresponding shareholder change can the transferee party of the equity transfer agreement obtain the shareholder status.

Equity refers to the rights that investors enjoy as a result of their investments in civic partnerships and corporate entities. ^[1]

1. When investing in a partnership, shareholders bear unlimited liability; When investing in a legal person, the shareholders bear limited liability. So it's both Stock right But there are still differences between the two.

2, the content of equity to corporate investors mainly includes: shareholders have only the investment amount as the limit civil The right of responsibility; The shareholders have the right to participate in the formulation and amendment of the articles of association of the legal person; The shareholder has the right to act as the manager of the legal person or to decide the candidate for the manager of the legal person; Have a hand in General meeting of shareholders The right to decide on major matters concerning the legal person; There is a share from the enterprise legal person bonus The right to; The shareholder shall have the right to transfer the equity according to law; Have the right to recover the remaining property after the termination of the legal person. These rights are derived from the rights enjoyed by shareholders who invest in legal persons.

To partnership investors Stock right In addition to not enjoying the first of the above equity rights, other corresponding rights are exactly the same.

Equity and corporate property rights and partnership property rights are derived from the ownership of investment property. The purpose of the investor's investment to the investee is to make profits, and it is to hand over the property to the investee to operate and bear civil liability, rather than handing over the property to the investee. So the property rights of the corporation and the property rights of the partnership are the rights of limited authorization. The rights granted are property rights of the investor, and the rights not granted, retained in their own hands and derived from them, are equity rights. Both are incomplete titles. The property right of the investee mainly reflects the external form of the ownership of investment property, while the equity mainly represents the core content of the ownership of investment property.

Legal person Property right and Stock right The relationship between the following points:

1, equity and legal person property rights are generated at the same time, they are the legal consequences of investment.

2, in general, equity decision Property right of legal person But there are also special and exceptions. because General meeting of shareholders It's the authority of the corporation and it makes decisions that the corporation must carry out. These resolutions and decisions are the concentrated embodiment of investors' exercise of equity. So in general, the equity determines the property rights of the legal person. Equity is the core of legal person property right, and equity is the soul of legal person property right. But in undertaking civil The legal person does not need to be approved by the general meeting of shareholders. This is an exception where the property rights of legal persons are not governed by equity rights. This is also the inevitable requirement of the legal person system.

3, equity in a sense can also be said to be legal person Right of control If you have obtained 100% of the equity of the enterprise legal person, you have obtained 100% of the control of the enterprise legal person. Stock right In the hands of the state, the enterprise legal person will eventually be controlled by the state; The equity is in the hands of citizens, and the enterprise legal person is ultimately controlled by citizens. Shareholding in Parent company In the hands of the corporation, the legal person is ultimately under the control of the parent company. This is an indisputable social reality at all times.

4, the transfer of equity will lead to the overall transfer of ownership of the legal person's property, but it has nothing to do with the legal person's property rights. The form of the overall transfer of the enterprise and its property is the total transfer of the equity of the enterprise. The transfer of all equity means General meeting of shareholders A shake-up of members, a change of ownership of corporate property. However, the full transfer of equity will not affect the change of the registered capital of the enterprise, and will not affect the use of the enterprise Fixed assets and Working capital ; Will not prevent the legal person to bear its property civil Responsibility. Therefore, the property rights of legal persons will not change because of the transfer of equity.

The relationship between equity and property rights in partnerships is similar.

Stock right Although not exactly the same ownership But it is the core content of ownership. The equity investor is the owner of the property. Equity rights cannot exist separately from the property rights of legal persons, and the property rights of legal persons cannot exist separately from equity rights.

What is equity not at all Creditor's right , Membership right And so on and so forth.

The reason why people cannot correctly understand equity and legal person property rights for many years is that people do not see the source of their production and do not study the internal relationship between them. Some people still have some defects in their habitual understanding of legal persons.

Stock right The transfer is a transfer of equity that occurs when the shareholders (transferor) and others (transferee) agree on the intention of both parties. Since the equity transfer must be the same intention of the transferor and the transferee, the equity transfer should be a contractual act and should be expressed in the form of an agreement.

Share transfer and share transfer

Shareholding transfer It refers to the transfer of the holding share, and in China it refers to the transfer of the investment share of a limited liability company. Share transfer, according to the different carrier of shares, can be divided into general share transfer and stock transfer. General share transfers refer to transfers of shares in the form of non-shares, including transfers of shares in which the capital has been paid but shares have not been issued, and transfers of shares which have been subscribed but have not yet been paid and therefore cannot be issued. Stock transfer refers to the transfer of shares with stocks as the carrier. Stock transfers can be further subdivided into Registered stock Transfer and unregistered stock transfer, paper stock transfer and paperless stock transfer, etc.

Written equity transfer and unwritten equity transfer

Stock right Most transfers are made in writing. The laws and regulations of some countries also explicitly stipulate that equity transfer must be carried out in written form, or even in a special written form (notarization). However, non-written equity transfer often occurs, especially in the form of stock transfer, through the non-written form can be more effective and rapid.

Immediate equity transfer and appointment equity transfer

Immediate equity transfer means with Equity transfer agreement An equity transfer that takes effect immediately after the payment of the payment. Those equity transfers with a specific period or specific conditions are reserved equity transfers. China Company Law Article 142 The shares of the company held by the promoters shall not be transferred within one year from the date of establishment of the company. The shares that have been issued before the public offering of shares of a company, since the company's shares are in Stock exchange It shall not be transferred within one year from the date of listing.

Company directors, supervisors, Senior management He shall report to the company the shares of the company he holds and their changes, and the number of shares transferred each year during the term of office shall not exceed 25 percent of the total number of shares of the company he holds; The shares held by the company are from the company Listing transaction It shall not be transferred within one year from the date. The above-mentioned personnel shall not transfer the shares of the company held by them within six months after their resignation. The articles of association of a company may make other restrictive provisions on the transfer of the shares of the company held by the directors, supervisors and senior managers of the company. In order to circumvent this legal requirement, the promoter and another person signed the supplementary period Company establishment One year later Equity transfer agreement , and the directors, supervisors, managers and others signed a time-limited equity transfer agreement, that is, the prospective equity transfer.

Equity transfer in which the company participates and equity transfer in which the company does not participate

Company participation Stock right The transfer indicates that the equity transfer has been recognized by the company, so it can be regarded as the nominal replacement of the shareholder qualification but has been effectively recognized by the company, which is the most positive significance of the company's participation in the equity transfer. But at the same time, it also reminds everyone that many Chinese companies participate in the phenomenon of equity transfer, without the invitation of the equity transfer parties or without the equity owner authorized the company agent situations occur.

Paid equity transfer and gratuitous equity transfer

compensation Equity transfer should undoubtedly belong to the mainstream form of equity transfer. However, the gratuitous equity transfer is also a way for shareholders to exercise equity disposal. Shareholders may transfer their equity by way of donation. The successor of a shareholder may also acquire the shareholder's by way of inheritance Stock right . In practice, it should be noted that if a shareholder unilaterally transfers its equity by way of a gift, donee May make acceptance or renunciation of the intention according to their own will, the donee accepts the equity gift, the equity transfer occurs; The donee abandons the equity gift, and the equity is not transferred.

1. Obtain the Application Form for Registration of Company Change ( Industrial and commercial bureau Collect at the window of the card processing hall)

2, change the business license (fill in the company change form, stamp the official seal, sort out the amendments to the company's articles of association, Resolution of the shareholders' meeting The original copy of the equity transfer agreement and the company's business license shall be handled at the certificate hall of the Industrial and Commercial Bureau)

3, change the organization code certificate (fill in the enterprise code certificate change form, stamp the official seal, sort out the company change notice, business license copy, corporate identity card copy, old code certificate original to Bureau of Quality and Technical Supervision To handle)

4, change the tax registration certificate (take the tax change notice to the tax bureau)

5, change the bank information (with the bank change notice for the basic account bank)

Information required for company equity change

1. Application Form for Registration of Company Change

2. Amendments to the Articles of Association (signed and sealed by all shareholders)

3, shareholders' resolution (signed by all shareholders, seal)

4. Copy of company license (original)

5, copy of all shareholders ID card (original check)

6. Equity transfer agreement Original (indicating to whom the equity is transferred, the equity, creditor's rights and debts are transferred together, signed by the assignor and the transferee)

1. In equity transfer transactions, the transferor is a taxpayer, and Transferable interest The party is a withholding agent to perform the obligation to withhold and pay taxes.

2. Equity transaction After the parties have signed the equity transfer agreement and completed the equity transfer transaction until the enterprise changes its equity registration, the transferor or transferee who has tax obligation or withholding obligation shall file a tax (withholding) declaration with the competent tax authority and present the personal income tax payment certificate or exemption or non-tax certificate issued by the tax authority for the equity transfer income. Apply to the administrative department for industry and commerce Registration of shareholding change Procedure.

3. If the parties to the equity transaction have signed the equity transfer agreement, but the equity transfer transaction has not been completed, the enterprise is in the process of transferring the equity Administration of industry and commerce When the department applies for the registration of equity change, it shall fill in the Report Form on Changes of Individual Shareholders and submit it to the supervisor Tax authority Declare it.

Equity transfer acts that should be prohibited

" Company law The shares of the company held by the promoters of the joint stock company shall not be transferred within one year from the date of establishment of the company. The shares of the company held by the directors, supervisors, managers and other senior management personnel of the company shall not be transferred by more than 25 percent of the total shares of the Company held by them each year during the term of office. When transferring the shares of an unlisted joint-stock company, the investor must have a clear understanding of the relevant circumstances of the shares to be transferred.

Limited liability company There are two ways for shareholders to transfer their contributions: first, shareholders transfer their equity to other existing shareholders, that is, equity transfer within the company; Second, shareholders transfer their equity to other investors other than existing shareholders, that is, equity transfer outside the company. There are some differences between the two forms in terms of conditions and procedures.

After the transfer of shares, the change of shares shall be handled in a timely manner

1. After the completion of equity transfer, the target company shall cancel the capital contribution certificate of the original shareholder, and issue the capital contribution certificate of the new shareholder, and need to modify the name, residence and capital contribution of the relevant shareholder in the company's articles of association and the register of shareholders.

2. Where a limited liability company changes its shareholders, it shall, within 30 days from the date of the change of shareholders, register the change with the industrial and commercial department.

It should be emphasized that the change registration should be submitted at the same time of the new shareholder's legal personality certificate or natural person's identity certificate and the revised Articles of association .

In essence, equity is the shareholder's right of control or control over the company and its affairs, and is the general term of the legal status and rights enjoyed by shareholders based on investment. Specifically, it includes the right to profit, the right to vote, the right to know and other rights.

1. Forms of equity transfer: There are two ways for shareholders of limited liability companies to transfer their contributions: first, shareholders transfer their equity to other existing shareholders, that is, equity transfer within the company; Second, shareholders transfer their equity to other investors other than existing shareholders, that is, equity transfer outside the company. There are some differences between the two forms in terms of conditions and procedures.

(1) Internal share transfer: the mutual transfer of the amount of capital contribution between the contributing shareholders according to law is an internal behavior between the shareholders, which can be legally effective by changing the articles of association, the register of shareholders and the capital contribution certificate in accordance with the relevant provisions of the Company law. Once there is a dispute between shareholders, it can be used as a basis.

(2) Transfer of shares to a third party: When a shareholder transfers its capital contribution to a third party other than the shareholder, it is an act of transfer outside the company, and in addition to changing the articles of association, the register of shareholders and relevant documents in accordance with the above provisions, it must also register the change with the administrative authority for industry and commerce.

For the transfer of shares to a third party, the provisions of the Company Law are relatively clear, in Article 71, paragraph 2 stipulates: "The transfer of shares by a shareholder to a person other than a shareholder shall be approved by more than half of the other shareholders." The shareholders shall notify other shareholders in writing of the transfer of their shares for consent. If the other shareholders fail to reply within 30 days from the date of receiving the written notice, they shall be deemed to have consented 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. Those who do not purchase shall be deemed to have agreed to the transfer."

The legislative starting point of this provision is: on the one hand, to ensure that the equity transferor is relatively free to transfer its investment, on the other hand, to consider the mixed nature of the limited company's assets and people, so as to maintain the trust foundation between the company's shareholders as much as possible. According to this provision of the Company Law and Article 38 of the Company, the transfer of external equity must meet two substantive requirements: the approval of more than half of all shareholders and the resolution of the shareholders' meeting. This is the basic principle regarding the transfer of capital contributions outside the company. This principle contains the following special contents: First, numeralism is used as the basis for calculating voting rights. China's company system attaches more importance to the human factors of limited companies, so it adopts the number of people to decide, rather than according to the proportion of shareholders as the calculation standard. Second, more than half of the shareholders other than the transferor.

2. Practical operation of equity transfer:

In practice, the implementation of equity transfer can be carried out in two ways. First, after fulfilling the above procedural and substantive requirements, the equity transfer agreement is signed with the confirmed transferee to make the transferee become the shareholder of the company. In this way, there is no great risk for both parties, but before signing the equity transfer agreement, the equity transfer draft should be signed to agree on the relevant matters of equity transfer. And agree on the liability for breach of contract Contracting negligence liability The commitment of; In the other way, the transferor and the transferee sign the equity transfer agreement first, and then the transferor performs the procedures and entity conditions in the company, but this way can not achieve the purpose of equity transfer, and the risk is great for the transferee. Generally speaking, the transferee must pay part of the transfer payment first. The assignee shall bear the risk of recovering the money, including litigation, execution, etc.

In the process of equity transfer, the transferor needs to pay various taxes and fees.

When the transferor is an individual

If the transferor is an individual, individual income tax should be paid at 20%.

When the transferor is a corporation

If the transferor is a company, more taxes need to be involved, as detailed in the reference material "Tax Treatment of Company Equity Transfer". The details are as follows:

(1) Taxes involved in the transfer of equity by domestic enterprises

The company transfers the equity to a company, and the income from the equity transfer will involve corporate income tax, business tax, deed tax, stamp duty and other related issues:

1. Corporate income tax

(1) Enterprises in the general equity (including the transfer of shares or shares) trading, should be in accordance with the State Administration of Taxation on the Enterprise Equity Investment Business of certain income tax issues Notice (GuOLfa [2000]118, repealed) relevant provisions. The accumulated undistributed profit or accumulated surplus reserve fund to be shared by the equity transferor shall be recognized as equity transfer income and shall not be recognized as dividend income.

(2) When an enterprise liquidates or transfers a wholly-owned subsidiary and an enterprise holding more than 95% of its shares, it shall be executed in accordance with the relevant provisions of the Notice of the State Administration of Taxation on Issuing the Provisional Provisions on Certain Income Tax Business Issues in the Reorganization and Restructuring of Enterprises (Guo Shui Fa [1998]97, repealed). The investor's share of the investee's accumulated undistributed profit and accumulated surplus reserve shall be recognized as the investor's income in the nature of dividends. In order to avoid double taxation of after-tax profits and affect enterprise restructuring activities, the above dividend income is allowed to be deducted from the transfer income when calculating the equity transfer income of the investor.

(3) In accordance with the provisions of Article 3 of the Notice of the State Administration of Taxation on the Implementation of the "Enterprise Accounting System" requiring clear income tax issues (State Tax FA [2003]45), the enterprise has withdrawn assets for impairment, depreciation or bad debts, if the relevant preparation has been adjusted to increase the taxable income at the time of tax declaration, Provisions relating to the transfer and disposal of the relevant assets that are written off shall allow for a contrary tax adjustment. Therefore, when an enterprise liquidates or transfers all the shares of a subsidiary (or an independent accounting branch), the liquidated or transferred enterprise shall, according to the amount of provisions for bad debts and other assets impairment provisions that have been written off and adjusted to taxable income in the past, adjust the taxable income accordingly, increase the undistributed profit, and recognize the income of the nature of dividends according to the equity share enjoyed by the transferor (or investor).

Income tax treatment of income and loss from the transfer of equity investment in enterprises

(4) The income or loss from the transfer of an enterprise's equity investment refers to the balance of the income from the recovery, transfer or liquidation of the enterprise's equity investment after deducting the cost of the equity investment. The income from the transfer of equity investment of an enterprise shall be incorporated into the taxable income of the enterprise, and the enterprise income tax shall be paid according to law.

(5) Equity investment losses incurred by an enterprise due to the recovery, transfer or liquidation of equity investment may be deducted before tax, but the equity investment losses deducted in each tax year shall not exceed the equity investment income and investment transfer income realized in the current year, and the excess part may be carried forward to subsequent tax years indefinitely for deduction.

2. Business tax

According to the Notice of the Ministry of Finance and the State Administration of Taxation on Business Tax Issues related to Equity Transfer (Finance and Taxation No. 191) :

(A) To Intangible assets , immovables The act of investing as a share, sharing the profits of the investors and sharing the investment risks shall not be levied Business tax .

(2) Since January 1, 2003, no business tax will be levied on equity transfer.

3. Deed tax

According to the provisions, in the transfer of equity, units and individuals bear the equity of the enterprise, the land and housing ownership of the enterprise is not transferred, and no deed tax is levied; In the process of capital increase and share expansion, it shall be levied on those who buy shares of land or house ownership at the price of land or house ownership or invest in enterprises as capital contribution Deed tax .

4. Stamp duty Taxation of equity transfer

There are two situations of equity transfer: one is in Shanghai, Shenzhen Stock Exchange For the transfer of equity in an enterprise that is traded or held in custody, the securities (stock) transaction stamp tax shall be levied at a tax rate of 3‰ of the securities (stock) transaction stamp tax. Second, the transfer of equity in enterprises that are not traded or held in Shanghai or Shenzhen Stock exchanges shall be implemented in accordance with the provisions of Article 10 of the Notice of Interpretation and Provisions on Certain Specific Issues of Stamp Duty of the General Taxation Authority of the State on September 18, 1991 (State Taxation No. 1). Stamp duty shall be levied by the parties at a rate of five thousandths of the agreed price (i.e. the amount contained).

(2) Income tax treatment of equity transfer of domestic enterprises

According to the provisions of the State Administration of Taxation "Notice on Certain Income Tax Issues of Enterprise Equity Investment Business" (GuOLfa 118, repealed) :

The income or loss from the transfer of equity investment of an enterprise refers to the balance of the income from the recovery, transfer or liquidation of equity investment of an enterprise after deducting the cost of equity investment. The income from the transfer of equity investment of an enterprise shall be incorporated into the taxable income of the enterprise, and the enterprise income tax shall be paid according to law.

If the amount of distribution paid by the investee enterprise to the investor exceeds the accumulated undistributed profit and accumulated surplus reserve fund of the investee enterprise but is lower than the investment cost of the investor, it shall be regarded as investment recovery and the investment cost shall be deducted. The portion exceeding the investment cost shall be regarded as the equity transfer income of the investor enterprise and shall be incorporated into the taxable income of the enterprise and shall be subject to enterprise income tax according to law.

Stock right Transfer with freedom as the principle, with restrictions as the exception, this is worldwide Company law The general rules governing the transfer of shares. However, no matter how free the equity transfer is, the restrictions on its exceptions exist to varying degrees, and it is the existence of this restriction that makes people to Equity transfer agreement The effectiveness of the review is difficult to grasp. Specifically, the restrictions on equity transfer can be divided into the following three situations.

Equity transfer restrictions by law

Equity transfer restrictions according to law, that is, the conditions of equity transfer expressly set by national laws. This is also one of the most important and complex restrictions on equity transfer. According to Chinese law, legal restrictions on equity transfer mainly include closed restrictions, restrictions on the place of equity transfer, and restrictions on the time when sponsors hold shares. MANAGEMENT , supervisor Restrictions on the conditions of the manager, special Share transfer Restrictions on acquiring your own shares.

(1) Closure restriction

China's" Company law Article 35: "Shareholders may transfer all or part of their capital contributions to each other." When a shareholder transfers its capital contribution to a person other than a shareholder, it must obtain the consent of more than half of all the shareholders; Shareholders who do not agree to the transfer shall purchase the transfer of the capital contribution, and if they do not purchase the transfer of the capital contribution, it shall be deemed Consent to transfer "

(2) Stock right Restrictions on the place of transfer

For the Transfer of Shares of a Limited Company China" Company law Article 139 states: "The transfer of shares by a shareholder must take place in a legally established institution. Stock exchange Proceed." Article 146 states:" Bearer stock The transfer shall take effect as soon as the shareholder delivers the shares to the transferee at a stock exchange established according to law." Such restrictions on the place of transfer are also rare in national legislation. This may be related to the dominant thought of management theory in administrative management, but the limitation of transferring the mode of administrative management into equity transfer is Company law Infantile disease in legal system.

(3) Restrictions on the duration of the promoter's shareholding

China's" Company law Article 142 states: "The shares of the company held by the promoters shall not be transferred within one year from the date of incorporation of the company." The restriction on the equity transfer of promoters makes the rights of promoters and other shareholders unequal, and is not commensurate with the equal exercise of rights by various market subjects in the socialist market economy.

(4) Restrictions on the qualifications of directors, supervisors and managers

According to Article 142 of the Company Law of the People's Republic of China, "The directors, supervisors and senior managers of a company shall report to the Company the shares of the Company held by them and the changes thereof, and the shares transferred each year during the term of office shall not exceed 25 percent of the total shares of the Company held by them; The shares held by the Company shall not be transferred within one year from the date of listing of the company's shares. The above-mentioned personnel shall not transfer the shares of the Company held by them within six months after their resignation." Its purpose is to prevent the person in charge of the company to use their position to obtain the internal information of the company and engage in unfair insider information Equity transaction Thereby harming the legitimate rights and interests of shareholders of other non-directors, supervisors and managers.

(5) Special Share transfer The restrictions of China" Company law Article 148: "Institutions authorized by the State to invest may transfer their shares in accordance with the law, and may also purchase shares held by other shareholders." The authority for examining and approving the transfer or purchase of shares and the administrative measures shall be provided for separately by laws and administrative regulations." July 1997 Ministry of Foreign Trade and Economic Cooperation, State Administration for Industry and Commerce Joint release Certain Provisions on the Change of Equity Rights of Investors in Foreign-Invested Enterprises Article 20 states:" Equity transfer agreement And modify the original contract and articles of association agreement of the enterprise Approval certificate for foreign-invested enterprises As of the date. After the agreement becomes effective, the enterprise investor shall enjoy the relevant rights and undertake the relevant obligations in accordance with the revised enterprise contract and articles of association."

(6) Restrictions on acquiring its own shares

China's" Company law Article 149 (1) states: "The Company shall not acquire the shares of the company, but shall reduce them. Corporate capital Except in the case of cancellation of shares or merger with other companies holding shares of the company." After the company purchases the company's shares in accordance with the law, it must cancel those shares within 10 days. Administrative law To handle the registration of changes and announce them. At the same time, Article 149 (3) also provides that "the company shall not accept the shares of the company as acts. hypothecation The target of..." The "subject matter of the mortgage" here should be more accurately expressed as "subject matter of the pledge". Because according to China Guarantee Act Article 75: "Legally transferable shares, stocks" shall be Pledge of rights The object of the right of pledge. If the company accepts the pledge of the company's shares, the pledgee and the pledgee are one and the same.

Equity transfer restrictions in accordance with the articles of association

constitutionally Stock right Transfer restrictions refer to the conditions set for equity transfer through the articles of association of the company, and the equity transfer restrictions in accordance with the articles of association are mostly carried out in accordance with the permission of the law. In China Company law There are no such restrictions in the law.

Restrictions on the transfer of shares under the contract

The restriction on the transfer of shares in accordance with the contract refers to the restriction on the pricing of the transfer of shares in accordance with the contract. Such contracts shall include contracts between the company and shareholders, shareholders and shareholders, and shareholders and third parties. Such as some shareholders on the equity Priority of assignment The mutual agreement made by the company and the agreement made between the company and some shareholders to buy back the shares under specific conditions are the concrete embodiment of the equity transfer restrictions under the contract.

Transfer of shares of unfunded shareholders of a company

Non-contribution is actually a false contribution, that is, "acquisition of shares without payment" or "acquisition of shares without consideration". Unfunded shareholders of the company Stock right The validity of the assignment cannot be generalized. Unless the shareholders of the company who have not contributed to the equity transfer conceal the truth of the fact of not contributing to the equity transfer, and the assignee is thus deceived, the equity transfer of the shareholders of the company who have not contributed to the equity transfer shall not be deemed invalid; As long as both parties are aware of the fact that the equity of the uncontributed company exists, and the assignee voluntarily assumes the responsibility of making up the equity of the uncontributed company shareholder, it does not harm the interests of others, but is more beneficial Corporate capital The enrichment of.

Transfer of shares in a one-man company

China's" Company law Article 20, paragraph 1: "A limited liability company shall be jointly funded by two or more shareholders and not more than 50 shareholders." Article 75: "The establishment of a joint stock limited company shall be initiated by more than five persons, more than half of whom must have domiciliations in China." Where a state-owned enterprise is converted into a joint stock limited company, the number of sponsors may be less than five, but it shall be established by public offering." It can be seen from this that Chinese law does not recognize the establishment of one-person companies (except for wholly state-owned and wholly foreign-owned companies), but there is no clear provision for one-person companies after the establishment of companies.

Equity transfer in which part of the power is transferred

To transfer Stock right Some of the powers in (e.g Right to distribute surplus property Is the equity transfer as content valid? This paper holds that the content of equity includes two kinds of rights of self-interest and co-interest. Self-interest right refers to the rights that shareholders can claim independently for their own interests, mainly including Right to claim the company's earnings distribution , Right to claim for distribution of residual property , Right to request transfer of shares Other property rights; The common interest right refers to the right exercised by the shareholders for the benefit of the company as well as for their own interests, mainly including the shareholders' meeting Right of attendance and Right to vote , Right to know , Inspection right , Right of action And other participatory rights. Self-interest must be based on a general meeting or Board of directors Decisions can be concrete. Although the right of self-interest is a kind of property right, it can only be exercised after the approval of the general meeting of shareholders or the board of directors. It is a kind of expected right, which cannot exist independently of shareholders and must be attached to shareholders. Of course, it cannot be transferred separately from shares.

The transfer of shares without going through the relevant registration formalities for change

China's" Company law Article 36: "After the shareholder transfers the capital contribution according to law, the company shall record the name or name of the transferee, the domicile and the amount of capital contribution transferred in the register of shareholders." Article 145, paragraph 2, states:" Registered stock The company shall record the name and domicile of the transferee in the register of shareholders." Article 5 of the Regulations on the Administration of Company Registration provides that: "Where a limited liability company changes its shareholders, it shall apply for registration of the change within 30 days from the date of the change of the shareholders, and shall submit the certificate of legal personality of the new shareholders, or Natural person Proof of identity." Simply put, limited liability companies and registered shares are transferred to shareholders Stock right After that, the company change registration and industrial and commercial change registration should be handled. As a kind of power with exact right nature, the change of ownership involves the interests of various subjects, and the acquisition, elimination and change of equity must also be registered. Therefore, company change registration is a legal requirement for equity transfer. According to the Chinese" Contract law Article 44, paragraph 2, provides: "Where a law or administrative regulation shall go through formalities such as approval or registration to take effect, its provisions shall prevail." As long as the transfer of equity has not been registered, it shall be deemed that the transfer of equity has no legal effect; Similarly, according to the Chinese" Company law According to Article 36, Regulations on the Administration of Company Registration The provisions of the equity transfer should also be to Administrative departments for industry and commerce When applying for registration of change, the transfer of capital contribution by shareholders has not gone through the registration of company change, it shall also be deemed that the transfer of equity does not occur Legal effect .

The exercise of the preemption right in the execution procedure

On the basis of Supreme People's Court " Provisions on Certain Issues Concerning the Enforcement Work of the People's Courts (for Trial Implementation) Article 54 of the Law stipulates that "the frozen investment interests of the person subject to enforcement in the limited liability company or Stock right The people's court may follow Company Law of the People's Republic of China The provisions of Article 35 and Article 36 shall be auctioned, sold off or transferred by other means after obtaining the consent of more than half of all shareholders. The shareholder who does not agree to the transfer shall purchase the investment interest or equity of the transfer, and failure to purchase shall be deemed to have agreed to the transfer and shall not affect the execution." This provision recognizes limited liability companies when the equity is transferred to shareholders preemption However, because the prescribed procedure is not clear enough, there is a contradiction in practice.

No business tax will be levied on equity transfer

On the basis of Exchequer , State Administration of Taxation The rules, yes Stock right The transfer is not subject to business tax. In addition, the act of investing in intangible assets and real estate, sharing profits with the investors, and sharing investment risks shall not be subject to business tax. For the calculation of turnover, financial enterprises (including banks and Non-bank financial institutions For those engaged in the trading of stocks and bonds, the turnover shall be the balance of the selling price of stocks and bonds less the income price, and the purchase price shall be the same Financial accounting system It is determined by the balance of the purchase price of stocks and bonds minus the dividend income of stocks and bonds obtained during the holding period of stocks and bonds.

Notarization of equity transfer contract

Equity transfer contract Whether to notarize or not shall be autonomous according to the will of the parties concerned, but based on Provisional Regulations of the People's Republic of China on Notarization Article 2 stipulates: "Notarization means that the state notarial organ, according to the application of the parties, proves the authenticity and legality of legal acts, documents and facts of legal significance in accordance with the law, in order to protect public property, citizenship, property rights and legitimate interests." Therefore, in order to protect the legitimate rights and interests of the state and the parties, the parties to the equity transfer contract should apply to a notary office for notarization. When notarizing, Stock right The transferor and the transferee shall provide the following materials:

① Corporate Corporate License Legal representative qualification certificate, legal representative identity certificate. If the legal representative cannot handle it in person, it should be provided Power of attorney The identity certificate of the trustee, etc.;

② If the transferor or transferee of the equity is a limited liability company, it is also necessary to submit the company's consent to the transfer or Transferable interest Resolutions of the shareholders' meeting (resolutions of the shareholders' meeting shall be signed and sealed by the representatives of each shareholder), if the transferor is an individual, its identity proof shall be submitted;

③ If the transferor or transferee is a foreign businessman or a Hong Kong, Macao or Taiwan businessman, the materials provided are Board resolution , power of attorney, business registration certificate, if it is a Hong Kong party also need to Ministry of Justice, People's Republic of China commissioned Notary public For notarization, if it is a party in other countries or regions, it should go to the local notarization, and be certified by the embassy or consulate of the People's Republic of China in that country;

④ Involving state-owned assets, it is also necessary to provide an asset evaluation agency issued Assets Appraisal Report Approval documents from relevant departments, etc.

in Equity transfer contract In terms of performance, the main obligation of the transferor is to transfer the equity to the transferee, and the main obligation of the transferee is to pay the transfer payment to the transferor in accordance with the agreement.

How to ensure Stock right Efficient transfer?

For limited liability companies, the new" Company law Article 33 stipulates that a limited liability company shall prepare Register of shareholders , record the following:

1. The name and domicile of the shareholder;

2. The amount of capital contributed by shareholders;

3. Capital contribution certificate Number.

A shareholder recorded in the register of shareholders may claim exercise in accordance with the register of shareholders Shareholder rights .

The company shall register the name of the shareholder and the amount of his capital contribution with the company registration authority; Changes in registered items shall be handled Change registration . Without registration or change of registration, Against no third party .

Article 32 of the Regulations on the Administration of Company Registration (revised in 2005) stipulates that Change of company Paid-in capital A capital verification certificate issued by a capital verification institution established according to law shall be submitted, and shall be followed Articles of association The stated time of investment, Way of investment Pay the capital contribution. The company shall apply for registration of change within 30 days from the date of payment of the capital contribution or share capital in full.

It can be seen that in a limited liability company, even if the assignee signed Equity transfer contract And the contract has come into effect, before the company carries out the procedure of changing the register of shareholders for it, it cannot be recognized that it has obtained the qualification of shareholders, only after the company changes the register of shareholders and carries out the registration of industrial and commercial changes, the alternation of new and old shareholders is really completed in law and has social publicity. Company limited by shares Stock right The transfer situation is different. If the equity transfer contract becomes effective and the transferee acquires the equity of the company immediately, and the parties to the contract are named shareholders, the company shall be notified to change the register of shareholders.

It should be noted that the above registration change procedures are declarative or confrontational, which is the most effective means for the transferee to protect its own rights and fight against the company or the third party. In practice, it must be paid great attention to, and it must not leave hidden dangers because of the cumbersome procedures for a while.

In the transfer of equity, we should also pay attention to some regulations on the subject, content and procedure of the transfer. Nu Skin Company law Article 142 stipulates that the shares of the company held by the promoters shall not be transferred within one year from the date of establishment of the company. The shares that have been issued before the public offering of shares of a company, since the company's shares are in Stock exchange It shall not be transferred within one year from the date of listing.

The directors, supervisors and senior managers of the company shall report to the company the shares of the company held and the changes thereof, and the shares transferred each year during the term of office shall not exceed 25 percent of the total shares of the company held by them; The shares held by the company are from the company Stock listing It cannot be transferred within one year from the date of transaction. The above-mentioned personnel shall not transfer the shares of the company held by them within six months after their resignation. The articles of association of a company may make other restrictive provisions on the transfer of the shares of the company held by the directors, supervisors and senior managers of the company.

Except as required by law, if the articles of association are transferred to shareholders Stock right Or if there are special restrictions and requirements on the shares, the shareholders shall conclude Equity transfer contract These provisions shall not be violated.

Procedurally, the new" Company law Article 72 provides that shareholders of a limited liability company may transfer all or part of their equity to each other.

The transfer of shares by a shareholder to a person other than a shareholder shall be subject to the consent of more than half of the other shareholders. The shareholders shall notify other shareholders in writing of the transfer of their shares for consent. If the other shareholders fail to reply within 30 days from the date of receiving the written notice, they shall be deemed to have consented 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. Failure to purchase shall be deemed as consent to the transfer. If the equity is transferred with the consent of the shareholder, other shareholders shall have the right of preemption under the same conditions. If two or more shareholders claim to exercise the preemptive right, the respective purchase ratio shall be determined through consultation; If no agreement can be reached through negotiation, the pre-emptive right shall be exercised according to the respective proportion of investment at the time of transfer.

Pair of articles of association Stock right If the transfer provides otherwise, such provision shall prevail.

In short, equity transfer is a more complex legal issue, before the equity transfer, it is recommended to consult Company law Be a professional and proceed with caution.

The benefits of this approach are:

1. The current law in China stipulates that when the institutional shareholding reaches 30% of the outstanding shares, it shall be issued Tender offer As the SFC encourages this kind of acquisition and exempts it from the obligation of mandatory takeover offer, it can easily be held without undertaking the obligation of full takeover Listed company More than 30% Stock right It greatly reduces the acquisition cost.

2. Due to the different prices of the same shares in China, State shares , Corporate shares The stock price is lower than the current market price, which makes the merger cost lower. pass Acquisition by agreement non-negotiable Public share It can not only achieve the purpose of merger and acquisition, but also get the "price rent" brought by it.

Stock right The transfer price is not equal to the registered capital or actual investment, and is determined by the parties (the transferor and the transferee) with reference to the registered capital, actual investment, company assets, future profitability, intangible assets and other factors through negotiation, and can be greater than or less than the registered capital, actual investment, and company assets.

The Company shall have the right to request the shareholders who have not actually made their capital contribution to make up their capital contribution within a time limit, and the shareholders who have actually made their capital contribution shall also have the right to request the shareholders who have not actually made their capital contribution to make up their capital contribution.

After the completion of the industrial and commercial registration of the company, the shareholders shall not withdraw their shares and can only withdraw by way of equity transfer.

At the time of the transfer of the shareholder's equity, the company and other shareholders shall have the right to request the shareholder transferring the equity to first use the equity transfer price to make up the capital contribution.

China has different restrictions on the transfer of shares of limited companies and joint stock companies.

Article 71 of the latest Company Law restricts the transfer of shares of a limited liability company, and shareholders of a limited liability company may transfer all or part of their shares to each other. The transfer of shares by a shareholder to a person other than a shareholder shall be subject to the consent of more than half of the other shareholders. The shareholders shall notify other shareholders in writing of the transfer of their shares for consent. If the other shareholders fail to reply within 30 days from the date of receiving the written notice, they shall be deemed to have consented 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, and if they do not purchase, they shall be deemed to have agreed to the transfer. If the equity is transferred with the consent of the shareholder, other shareholders shall have the right of preemption under the same conditions. If two or more shareholders claim to exercise the preemptive right, the respective purchase ratio shall be determined through consultation; If no agreement can be reached through negotiation, the pre-emptive right shall be exercised according to the respective proportion of investment at the time of transfer.

Where the articles of association provide otherwise for the transfer of equity, such provisions shall prevail.

Article 141 of the latest Company Law restricts the transfer of shares of a joint stock limited company, and the shares of the company held by the promoters shall not be transferred within one year from the date of establishment of the company. The shares issued by the company before its public offering of shares shall not be transferred within one year from the date when the company's shares are listed on the stock exchange.

The directors, supervisors and senior managers of the company shall report to the Company the shares of the Company held by them and the changes thereof, and the shares transferred each year during the term of office shall not exceed 25 percent of the total shares of the Company held by them; The shares held by the Company shall not be transferred within one year from the date of listing of the company's shares. The above-mentioned personnel shall not transfer the shares of the Company held by them within six months after their resignation.

The articles of association of a company may make other restrictive provisions on the transfer of the shares of the company held by the directors, supervisors and senior managers of the company. ^[1]

_______ LTD. Equity transfer contract

Transferor: _______ (Party A)

Address:

Transferee: _______

Address:

This contract is made between Party A and Party B on _______ Co., LTD Stock right The transfer is effected at _______ on the ___ day _______.

Based on the principle of equality and mutual benefit, Party A and Party B have reached the following agreement through friendly negotiation:

Article one Equity transfer price And payment method

1, party a agrees to hold... co., LTD., the equity of... %... ten thousand yuan of capital contribution, transfer to... ten thousand yuan to party b, party b agreed to buy the stake at this price and amount.

2. Party B agrees to pay the transfer to Party A in cash within 15 days after the conclusion of this Contract Stock right .

Article 2 Warranty

1. Party A warrants that the equity transferred to Party B is its true investment in _______ Co., Ltd. and lawfully owned by Party A, and Party A has the full right to dispose of it. Party A warrants that it has not set up any mortgage for the transferred equity. pledge Or warranty, and against any third party recourse. Otherwise, all liabilities arising therefrom shall be borne by Party A.

2. After Party A transfers its equity, the rights and obligations previously enjoyed by Party A in _______ Co., Ltd. shall be transferred to Party B with the transfer of its equity.

3. Party B acknowledges the articles of association of _______ Co., LTD., and undertakes to fulfill its obligations and responsibilities in accordance with the articles of association.

Article 3 Profit and loss sharing

The company shall be approved and handled by the administrative authority for industry and commerce Shareholder change After registration, Party B shall become a shareholder of _______ Co., Ltd. and shall share the profits and losses of the company according to the proportion of capital contribution and the articles of association.

Article 4 Expenses

This time Stock right The expenses related to the transfer shall be borne by (both parties).

Article 5 Modification and termination of the Contract

The contract may be modified or terminated under any of the following circumstances, but both parties must sign a written modification or termination of the contract.

1. The Contract cannot be performed due to force majeure or external causes that cannot be prevented by either party without fault.

2. A party loses the ability to perform the contract.

3. The breach by one or both parties seriously affects the economic interests of the non-breaching party and makes the performance of the contract unnecessary.

4. Due to changes in circumstances, both parties agree to change or terminate the contract through negotiation.

Article 6 Dispute settlement

1. Disputes related to the validity, performance, breach and termination of this Contract shall be settled by the parties through friendly negotiation.

2. If no agreement can be reached through negotiation, either party may apply for arbitration or bring a lawsuit in the people's Court.

Article 7 Conditions and date of effective contract

This contract shall come into force after being signed by all parties.

Article 8 This Contract is made in quadruplicate, with each party holding one copy and reporting one copy to the administrative authority for industry and commerce and one copy to Beijing Co., LTD., both of which have the same legal effect.

Party A (signature) : _______ Party B (signature) : _______

Equity transfer

catalogue

Basic meaning

Development status

Nature of equity transfer

Equity and other concepts

species

Equity change process

Details of equity transfer

Form of equity transfer

way

Tax treatment

restrict

problem

Implementation procedure

advantage

Pricing principle

Legal basis

Protocol template