The equity transfer contract is different from many civil contracts, and it has more legal effective elements or conditional effective conditions.
For example, the equity transfer of a Sino-foreign joint venture must be approved by the original examination and approval authority, and this approval becomes a legally effective requirement for this equity transfer. Some equity transfer contracts stipulate that this contract will take effect after it is approved by the board of directors or the general meeting of shareholders, or that this contract will take effect when other shareholders of the company promise to give up the transfer of equity, which is a typical agreed effective condition. Therefore, the signed or established equity transfer contract is not necessarily a valid contract, and the people's court should pay special attention to the examination of valid elements when determining the validity of the contract.
The parties to the equity transfer shall abide by the provisions of the company law as well as the contract law when concluding the equity transfer contract.
The Company Law stipulates that the promoters of a joint stock limited company shall not transfer the shares of the company within three years from the date of establishment, and the directors, supervisors and managers of the company shall not transfer the shares of the company during their term of office. Except as provided by law, if the articles of association have special restrictions and requirements on shareholders' transfer of shares or shares, shareholders shall not violate these provisions when entering into an equity transfer contract. The Company Law and other laws and regulations as well as the provisions of the central government and the State Council prohibit entities from engaging in profit-making activities and becoming shareholders of the company. If laws and regulations prohibit the rights and abilities of market entities (for example, commercial banks are not allowed to invest in non-bank financial institutions and enterprises in China), such entities may not enter into equity transfer contracts in violation of regulations. Limited liability companies also have special procedural requirements for signing equity transfer contracts with people other than shareholders.
Article 35 of the Company Law stipulates that shareholders of a limited liability company must obtain the consent of more than half of all shareholders when transferring their equity contribution to people outside the company. Shareholders who do not agree to the transfer shall purchase the transferred capital contribution. If you don't buy the transferred capital contribution, it is deemed that you agree to the transfer. Under the same conditions, other shareholders have the priority to purchase the capital contribution. According to this regulation, the shareholders of a limited liability company should transfer their shares to people other than shareholders. Relevant information about the transfer, including the transferee, the proportion of shares to be transferred, the transfer price, etc., shall be notified to the company in advance, and the shareholders' meeting of the company shall make a resolution on whether to approve the transfer of shares.
In addition, there is a problem of preemptive right of other shareholders under the same conditions. The company law does not stipulate when other shareholders' preemptive rights will be exercised or claimed, but there must be a reasonable time limit. Only when the shareholders' meeting of the company decides to agree to the transfer or the diagnosis is deemed to agree to the transfer, and no shareholders claim the preemptive right, the shareholders can transfer. Only the shareholder who transfers the equity can sign the equity transfer contract with the transferee according to the situation of notifying other shareholders of the company. Shareholders of a limited liability company transfer their shares to people other than shareholders. Even if the equity transfer contract has been signed before notifying the company, the contract will take effect when the shareholders' meeting of the company makes a resolution to agree to the transfer and all other shareholders of the company give up the preemptive right. If the shareholders of a limited company fail to follow the prescribed procedures, the equity transfer contract may be invalid or revoked.
In addition, the validity of the equity transfer contract is different from that of the equity transfer contract. The validity of the equity transfer contract refers to the issue that is legally binding on the parties to the contract, and the validity of the equity transfer refers to the issue of when the equity is transferred, that is, when the transferee obtains the shareholder status. The two cannot be confused. The equity transfer contract is invalid or invalid, and the equity transfer is not effective. Even after the equity transfer contract comes into effect, it still needs the proper performance of the parties to realize the equity transfer.
(1) According to Article 1, a contract concluded by the parties during the establishment or change of a foreign-invested enterprise shall take effect after being approved by the examination and approval authority of the foreign-invested enterprise in accordance with the provisions of laws and administrative regulations, and shall take effect from the date of approval; Without approval, the people's court shall determine that the contract is not effective. The people's court shall not support the request of the parties to confirm the invalidity of the contract.
There is no regulation on whether the equity transfer contract of foreign-invested enterprises needs to be approved before it can take effect. However, according to Article 16 of the Detailed Rules for the Implementation of People's Republic of China (PRC) and the Law of People's Republic of China (PRC) on Foreign-funded Enterprises, the articles of association of a foreign-funded enterprise can only take effect after being approved by the examination and approval authority, while Article 22 stipulates that the increase and transfer of the registered capital of a foreign-funded enterprise must be approved by the examination and approval authority, and the company's articles of association can only take effect after going through the formalities of change registration in the administrative department for industry and commerce. However, if the agreement of the parties is later than this time, the agreement of the parties shall prevail.
Can the equity transfer agreement take effect without approval? According to the payment content agreed in the contract, it should be paid as long as it meets the payment conditions, regardless of whether the contract is effective or not.
How to terminate the equity transfer agreement, and what are the relevant regulations?
1. Cancellation of the equity transfer agreement: The right of revocation refers to the right enjoyed by the obligee to cancel an unreal but effective contract, so as to eliminate the contract. The cancellation right shall be enjoyed and disposed of by the parties to the contract according to law. If the cancellation right is not exercised, the contract is still valid, otherwise it is invalid.
According to the laws of our country, in any of the following circumstances, the parties may request to terminate the contract: 1, concluded due to major misunderstanding. 2. Show fairness when signing the contract. This is the conclusion reached by fraud. 4. Due to coercion. This is the conclusion reached by taking advantage of people's danger.
Second, the scope of termination of the equity transfer agreement
1. The preemptive right of internal shareholders leads to the instability of the effectiveness of the foreign share transfer agreement. Shareholders transfer their shares to other shareholders without notice, or the transfer price is better than the internal preemptive right, which leads to the condition of notice. At this time, the effectiveness of the transfer agreement should be judged according to whether it has been actually performed.
(1) The transfer agreement has been signed but not fulfilled. Although the agreement has come into effect at this time, due to the legal preemptive right of internal shareholders, the shareholders whose rights have been violated can directly claim the preemptive right, which makes the foreign equity transfer agreement impossible to reach;
(2) The transfer agreement has been signed and actually performed, and the shareholders who enjoy the preemptive right cannot directly claim the preemptive right, but they can claim that the equity transfer contract signed by the infringing shareholders is the basis for revocable contracts: Article 26 of the Supreme Law "Provisions on Several Issues Concerning the Trial of Company Disputes" stipulates that after the contract is revoked, the shareholders who enjoy the preemptive right can exercise the preemptive right under the same conditions. Third, the transfer agreement has been fulfilled and the publicity procedures have been completed. At this time, for the sake of maintaining transaction safety, stabilizing social and economic order and other public interests, if the shareholders who have enjoyed the preemptive right for more than a certain period (such as one year) do not advocate exercising the preemptive right, the shareholders' preemptive right will be eliminated.
2. Foreign-invested enterprises must go through the statutory examination and approval procedures when transferring their equity. The problem of pre-approval in foreign-invested enterprises has led to a large number of judicial proceedings, especially anonymous foreign investment and foreign equity transfer, in order to circumvent China's regulations on foreign over-investment and industrial investment restrictions. This paper only focuses on the issue of equity transfer, and most of the disputes involved in foreign-related equity transfer require that the equity transfer agreement be invalid on the grounds that the contract has not been approved. It can be claimed by the transferor or transferee that the corresponding loss-making party requests to confirm that the agreement is invalid mainly based on the operating effect of the company. In the final analysis, it is a matter of interest orientation. There are two main situations: (1) the contract has been signed, the examination and approval procedures have not been completed, and the transferee has not actually participated in the operation. At this point, the party whose rights have been infringed may claim that the equity transfer agreement has not taken effect; (two) the contract has been signed without going through the examination and approval procedures, but the transferee actually participates in the operation. At this time, the specific management situation of the company has changed and the agreement has been actually fulfilled. Except without the approval of the competent authorities, there are no other legal reasons for the agreement to be invalid, and the judicial organs will not adopt a one-size-fits-all judgment to solve such problems. We will comprehensively consider the subjective faults of both parties, the degree of losses suffered by both parties and the best effect of maintaining the company's operation according to the specific situation, and reach an understanding at a certain balance point (different cases need different handling methods, which requires full communication between the original defendant and the case-handling judge).
3. Special provisions on equity transfer of state-owned enterprises: This reflects the special protection of state-owned property by the state, and clearly stipulates that equity transfer of state-owned enterprises must meet certain conditions. The Measures for the Administration of State-owned Assets Appraisal stipulates that "in any of the following circumstances, the owner of state-owned assets shall conduct asset appraisal: auction or transfer of assets", and the corresponding provisions are the Detailed Rules for the Implementation of the Measures for the Administration of State-owned Assets Appraisal: the asset appraisal stipulated in Article 3 of the Measures refers to the asset appraisal that must be carried out in addition to the approval of the state-owned assets management department when the economic situation mentioned in this article occurs. In this case, the effectiveness of the equity transfer contract of state-owned enterprises is greatly influenced by the above procedural conditions.
If you can ask more specific questions, you can give more detailed answers.
What is an equity transfer agreement with effective conditions? Article 45 of the Contract Law stipulates that the parties may stipulate conditions for the entry into force of the contract. A contract with effective conditions shall take effect when the conditions are met.
How to write the equity transfer agreement is risky. You can find a lawyer to explain your affairs face to face, and the lawyer will write for you.
Company equity transfer agreement Company equity transfer agreement This agreement is made by the following parties on? Year? Month? Daytime? Signature:? Equity transferee: an investment management company, namely the transferee shareholder, is a company registered and validly existing under the laws of China (hereinafter referred to as the "transferee shareholder"), and its legal address is located at? City? Xx road, xx building. ? Transferor of equity: transferring shareholder? The group company is a company registered and validly existing under the laws of China (hereinafter referred to as the "transferring shareholder"), and its legal address is located at? XX street, xx district, city. ? Foreword? 1. Whereas the Transferor and Limited Company (hereinafter referred to as the Company) signed the contract and articles of association on 1999 1 1 month 15, the Target Company (hereinafter referred to as the Target Company) was jointly established in Beijing. What is its main business scope? Wait a minute. When is the business license of the target company? Date of issue. ? 2. Whereas the registered capital of the target company is? Ten thousand yuan (RMB? ), the transferor is the existing shareholder of the target company and holds% shares of the target company on the signing date of this agreement? (? %) shares; What percentage of the Target Company is the Transferor willing to hold at the consideration specified in Article 2.2 below and other terms and conditions specified in this Agreement? (? %) the shares are transferred to the equity transferee, and the equity transferee is willing to accept the above transferred shares and interests under the conditions stipulated in the terms of this agreement. ? Accordingly, the two parties reached the following agreement through friendly consultation on the principle of cooperation and mutual benefit, in accordance with the following terms, so as to abide by it together: Chapter I Definition? 1. 1 In this agreement, unless the context requires otherwise, the following words have the following meanings:? (1) "China" refers to People's Republic of China (PRC) (excluding Hongkong, Macao Special Administrative Region and Taiwan Province Province); ? (2) "Hong Kong" means the People's Republic of China (PRC) Special Administrative Region. ? (3) "RMB" refers to the legal tender of People's Republic of China (PRC); ? (4) "Shares" refers to the shareholders' rights and interests of the target company enjoyed by the existing shareholders according to the relevant legal documents and in proportion to the registered capital subscribed and actually invested in the target company. Generally speaking, shares can be expressed in the form of shares and equity shares. In this agreement, the shares are calculated by percentage; ? (5) "Share transfer" refers to fifty-one percent (565,438+0%) of the equity of the target company held by the transferor according to the conditions and provisions of this agreement; ? (6) "Transfer Price" refers to the transfer price mentioned in Articles 2.2 and 2.3; ? (7) For the definition of "transfer completion date", see Article 5. 1; ? (8) "Existing shareholders" refer to the shareholders of the target company specified in the latest effective contract and articles of association before the signing of this agreement, that is, the transferring shareholders and the equity transferor of this agreement; ? (9) Agreement: refers to the main text of this agreement, all annexes and other documents agreed by both parties as annexes to this agreement. ? Chapter 65438 +0.2, Article, Paragraph, Item and Annex refer to the chapter, Article, Paragraph, Item and Annex of this Agreement respectively. ? 1.3 The headings in this agreement are for convenience and shall not affect the understanding and interpretation of this agreement. ? Chapter II Equity Transfer? 2. 1 Party A and Party B agree that the equity transferee shall pay the cash amount specified in Article 2.2 to the equity transferor as the consideration and purchase the transferred shares in accordance with the conditions specified in Chapter IV of this Agreement. ? 2.2 The transfer price of the equity transferee's acquisition of the "transferred shares" of the equity transferor is Wu Bai yuan100000 yuan. ? 2.3 The transfer price refers to the purchase price of the transferred shares, including all kinds of shareholders' rights and interests contained in the transferred shares. These shareholders' rights and interests refer to all existing and potential rights and interests attached to the transferred shares, including the rights and interests represented by fifty-one percent (565,438+0%) of all movable and immovable property and tangible and intangible assets owned by the target company. The transfer price does not include the following amounts: (a) any debts and other payables of the target company not listed in Annex 2 of this Agreement (hereinafter referred to as "undisclosed debts") and (b) shortage, damage, reduction or loss of use value of the existing assets of the target company compared with the list listed in Annex 1 (collectively referred to as "depreciation of property value"). ? 2.4 For the undisclosed debts (if any), the transferor of equity shall be liable for repayment according to fifty-one percent (565,438+0%) of the undisclosed debts. ? 2.5 The debts listed in Annex II of this Agreement shall be borne by the equity transferee. ? 2.6 Within 7 working days after the signing of this agreement, the transferor of the equity shall urge the target company to submit the revised contract and articles of association of the target company to the examination and approval authority, and submit all the documents required for the change of the equity of the target company to the administrative department for industry and commerce, so as to complete the procedures for the change of the equity, and make the transferee of the equity become the shareholder of the target company. ? Chapter III Payment? 3. 1 The equity transferee shall pay part of the transfer price to the equity transferor within fifteen (15) working days after the signing of this agreement, totaling RMB 3 million, and pay the balance of the transfer price to the equity transferor within fifteen (15) working days after meeting all the preconditions mentioned in Article 4. 1 of this agreement within a limited period. ? 3.2 The transfer price paid by the equity transferee to the equity transferor according to Article 3. 1 of this Agreement shall be deposited into the independent bank account of the equity transferor provided by the equity transferor and agreed by the equity transferee, and shall be supervised by both parties. The specific supervision measures are: before the transfer price mentioned in Article 3. 1 of this Agreement is paid, the transferee and transferor of the equity shall each appoint an authorized representative, both of whom shall be co-authorized signatories (the above two co-authorized signatories are collectively referred to as "co-authorized signatories"), and notify the other party of the names and positions of their respective authorized representatives in writing. After the above written notice is issued, before the transfer price mentioned in Article 3. 1 of this Agreement is paid, the jointly authorized signatory * * * shall go through the formalities of pre-seal with the bank where the above independent bank account is opened, so as to ensure the implementation of the regulatory measures mentioned in this Article. Any amount in this account must be jointly authorized.
Ask for an example of equity transfer agreement! 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 the effective time 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, and its essence is to dispose of all its equity.
Model equity transfer agreement
Transferor: _ _ _ _ _ _ (Party A)
Domicile:
Transferee: _ _ _ _ _ _ (Party B)
Domicile:
This contract is signed by Party A and Party B on.
Based on the principle of equality and mutual benefit, Party A and Party B have reached the following agreement through friendly negotiation:
Article 1 equity transfer price and payment method
1. Party A agrees to use * * _ _ _ _ _ _% of the capital contribution of _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _.
2. Party B agrees to pay the equity transferred by Party A in cash within fifteen days after the signing of this contract.
Article 2 guarantee
1. Party A guarantees that the equity transferred to Party B is the real contribution made by Party A in _ _ _ _ _ Co., Ltd., which is legally owned by Party A, and Party A has the complete right to dispose of it. Party A guarantees that the transferred equity is not mortgaged, pledged or guaranteed, and is not subject to any third party's recourse. Otherwise, Party A shall bear all responsibilities arising therefrom.
2. After Party A transfers its equity, its original rights and obligations in _ _ _ _ _ Co., Ltd. shall be enjoyed and assumed by Party B along with the equity transfer.
3. Party B acknowledges the articles of association of _ _ _ _ _ Co., Ltd. and promises to perform its obligations and responsibilities in accordance with the articles of association.
Article 3 Profit and loss sharing
After the company is approved by the administrative department for industry and commerce and registered for change of shareholders, Party B, that is, the shareholders of _ _ _ _ Co., Ltd., shall share the profits and losses of the company according to the proportion of capital contribution and the articles of association.
Article 4 Burden of expenses
The expenses related to this equity transfer shall be borne by (both parties).
Article 5 Modification and Termination of the Contract
Under any of the following circumstances, the contract may be modified or terminated, but both parties must sign a written agreement to modify or terminate the contract.
1. The contract cannot be performed due to force majeure or external reasons that one party has no fault but cannot be prevented.
2. One party loses its actual performance ability.
3. Due to the breach of contract by one or both parties, the economic interests of the observant party are seriously affected, which makes the performance of the contract unnecessary.
4. If the situation changes, both parties agree to change or terminate the contract through consultation.
Article 6 Settlement of disputes
1. Disputes related to the validity, performance, breach and dissolution of this contract shall be settled through friendly negotiation.
If negotiation fails, either party may apply for arbitration or bring a lawsuit to 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 The original of this contract is in quadruplicate, one for each party, one for the administrative department for industry and commerce and one for Beijing Co., Ltd., all of which have the same legal effect.
Party A (signature): _ _ _ _ Party B (signature): _ _ _ _ _
Can the equity transfer agreement be dissolved? Party A and Party B signed an equity transfer agreement three years ago, stipulating that Party A would transfer its equity to Party B, and both parties also agreed on the transfer price, but did not agree on the payment time. However, the company has transferred its equity to Party B's name and made changes in the industrial and commercial authorities. After repeated recourse by Party B, but Party A refused to pay, Party B informed Party A in writing to terminate the equity transfer agreement, and Party A did not raise any objection or bring a lawsuit to the court within three months after receiving the notice. Ask?
One view is that the agreement can be dissolved, because Party A has fundamentally breached the contract and failed to bring a lawsuit within the specified time after being notified by Party A. According to the provisions of the contract law and judicial interpretation, the dissolution of the agreement has taken legal effect.
Two opinions are: the agreement cannot be dissolved because the contract has been fulfilled, and the contract cannot be dissolved, so Party B can only be required to pay.
What should be included in the equity transfer agreement? The equity transfer agreement shall include the following contents:
(1) Basic information of both parties, including the name and domicile of the transferor and the transferee, the name, position and nationality of the legal representative, etc.
(2) Company profile and shareholding structure.
(3) The notification obligation of the transferor.
(4) Share transfer, equity transfer price and payment method.
(5) the delivery period and method of equity transfer.
(6) Time agreement on obtaining the shareholder qualification.
(seven) the agreement on the registration of the change of equity transfer and the actual handover procedures.
(8) Agreement on the company's creditor's rights and debts before and after the equity transfer.
(9) Agreement on the rights and obligations of equity transfer.
(10) Liability for breach of contract.
(eleven) the application of legal dispute resolution.
(12) Agreement on notification obligation and contact information.
(13) Modification and dissolution of the agreement.
(fourteen) the signing place, time and effective time of the agreement.