In practice, the implementation of equity transfer can be carried out in two ways. One is to fulfill the above procedural and substantive requirements first, and then sign an equity transfer agreement with the determined transferee, so that the transferee can become a shareholder of the company. In this way, both parties have little risk, but before signing the equity transfer agreement, they should sign the draft equity transfer, stipulate the relevant matters of equity transfer, and stipulate the liability for breach of contract, that is, the liability for contracting negligence;
Another way is that the transferor and the transferee sign the equity transfer agreement first, and then the transferor fulfills the procedural and substantive conditions in the company. However, this method can not achieve the purpose of equity transfer, and it is very risky for the transferee. Generally speaking, the transferee must pay part of the transfer money first. If the equity transfer cannot be realized, the transferee will bear the risk of recovering the money, including litigation and execution.
Extended data:
Precautions:
(1) Conducting due diligence on the target company
The items that should be identified for the target company are: 1, the equity structure, assets, liabilities, tax arrears and contingent liabilities of the target company. 2. The contents of the articles of association of the target company, especially the restrictive provisions on equity transfer in the articles of association. Under normal circumstances, the transferee and the transferor shall jointly hire professional law firms, accounting firms and asset appraisal institutions to conduct due diligence on the legal status, financial status and important assets of the target company, and take the due diligence report as an annex to the equity transfer contract.
Two. The transferor and the transferee sign a letter of intent for equity transfer.
1. The letter of intent for equity transfer shall stipulate two special terms. 1. Effective Supplementary Provisions: This Letter of Intent shall come into effect after more than half of other shareholders of the target company agree to this transfer (the conditions stipulated in Article 7 1 of the Company Law) and give up the preemptive right, and meet the relevant conditions stipulated in the articles of association of the target company; Ii. notification obligation of the transferor: the transferor shall notify other shareholders of the target company within a certain period after signing this letter of intent.
2. Determination of transfer price. At present, the methods commonly used in practice to determine equity transfer price are as follows: first, the transfer price is directly based on the transferor's capital contribution in the target company; Second, the product of the audited net assets of the target company and the transferor's shareholding ratio is the transfer price; Third, the transfer price is the product of the target company's book net assets and the transferor's shareholding ratio; Fourth, determine the transfer price through bidding, auction and other bidding transactions.
Three. The transferor notifies other shareholders of the target company.
The transferor shall notify other shareholders of the target company in writing within the time specified in the letter of intent, requiring them to express their opinions on whether to agree to the transfer and whether to exercise the preemptive right within a certain period of time (at least 30 days specified in the Company Law of China), and timely perform the procedures specified in the articles of association.
Four. Statement of other shareholders of the target company
According to Article 7 1 of the new Company Law, if other shareholders do not agree to the transfer, they shall purchase the equity to be transferred by the transferor, otherwise it shall be deemed as agreeing to the transfer. That is, other shareholders can only prevent the transferor from transferring its equity to the outside world by exercising the preemptive right.
The preemptive right of other shareholders cannot be exercised separately. In other words, other shareholders can only buy all the shares to be transferred by the transferor, otherwise they must give up all the purchases, not just part of them.
Other shareholders should pay attention to prevent the transferor and transferee from damaging their preemptive rights through yin-yang contracts. In practice, the more effective method is that other shareholders require both parties to confirm the transfer price in writing and supervise the performance of the transfer contract.
Verb (abbreviation of verb) The transferor and the transferee sign a formal equity transfer contract.
Baidu encyclopedia-stock right transfer